                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
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                                   No. 03-1862
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David R. Horn,                            *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Minnesota.
University of Minnesota,                  *
                                          *          [PUBLISHED]
             Appellee.                    *

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                                Submitted: February 11, 2004
                                    Filed: April 6, 2004
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Before MORRIS SHEPPARD ARNOLD, HANSEN, and RILEY, Circuit Judges.
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HANSEN, Circuit Judge.

       David Horn, a former assistant coach of the University of Minnesota women’s
hockey team, appeals from the district court's1 grant of summary judgment in favor
of the University of Minnesota on Horn's claims of wage discrimination, retaliation,
and constructive discharge in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2000e-17 (2000), and the Equal Pay Act, 29 U.S.C. § 206(d)


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      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
(2000). Horn alleged that the University paid him less than a similarly situated
female assistant coach, retaliated against him for complaining about the wage
disparity, and constructively discharged him. The district court concluded that the
two assistant coaches did not hold substantially equal positions, that Horn was not
subject to an adverse employment action, and that Horn’s working conditions were
not intolerable. For the reasons discussed below, we affirm the judgment of the
district court.

                                   I. Background

        In preparation for the 1997-98 inaugural season of the women's hockey team,
the University hired a head coach, Laura Halldorson, and created two assistant coach
positions. Elizabeth Witchger was appointed to an 11-month term at a salary of
$33,000 ($3,000/month).2 Horn was appointed to a 10-month term at a salary of
$20,000 ($2,000/month). Although Halldorson categorized Witchger as the "First
Assistant" and Horn as the "Second Assistant," the University posted only one
description of the "Assistant Women's Ice Hockey Coach" position (Appellant's App.
at 1), and the job title and description in both coaches' contracts were identical except
for the salary and the term. (Id. at 23, 25.) Nevertheless, Horn admits that he was
aware that he was accepting the position of "Second Assistant."

       As contemplated by their contracts, both assistant coaches shared a number of
basic duties organizing daily practices and developing game plans. Additionally,
Halldorson provided Witchger and Horn with itemized lists of separate, individual
job duties. (See id. at 27, 30, 33.) Specifically, Witchger served as the external
liaison with "SID, public relations, promotions, and community outreach." (Id. at 30.)

      2
        Although Witchger's initial contract set her appointment term at 11 months
(July 29, 1997 to June 30, 1998), her $33,000 salary was based on a 12-month term.
(Appellant's App. at 25.) Viewing the facts in the light most favorable to Horn, we
will assume that Witchger was paid $33,000 for her 11-month appointment.
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Halldorson directed Witchger to start and maintain a booster club, represent the team
at meetings in Halldorson's absence, organize all team travel and arrange meals and
transportation for home games, and create a database to monitor information about
potential recruits. In contrast, Horn served as the internal liaison with the athletic
trainer, strength and conditioning staff, academic counselor, and equipment manager.
He had the additional responsibilities of identifying and evaluating potential recruits
and breaking down the videotape of games.

       At the end of the 1997-98 season, both assistant coaches received favorable
reviews, contract renewals, and salary increases. At some point during the season,
Horn discovered the original and ongoing difference between his salary and that of
Witchger and complained to the Director of Women's Athletics. Horn alleges that
after he made his initial complaint, Halldorson began to treat him poorly, failed to
communicate effectively with him, and undermined his authority in front of players.
Halldorson also gave Horn a poor performance evaluation for the 1998-99 season and
recommended that his contract not be renewed. Additionally, Halldorson failed to
invite Horn to participate in her independently run summer 1999 hockey camp.
Nevertheless, after the 1998-99 season, the University offered Horn a new 12-month
contract with another salary increase. Horn rejected the offer and left the University
for another employer in the fall of 1999.

                                   II. Discussion

       "We review the district court's grant of summary judgment de novo." Tademe
v. Saint Cloud State Univ., 328 F.3d 982, 986 (8th Cir. 2003). "We apply the same
standard as the district court and determine whether the record shows that no genuine
issue of material fact exists and that the moving party is entitled to judgment as a
matter of law." Id. at 986-87 (internal marks omitted); Fed. R. Civ. P. 56(c). We
must view the evidence and draw all reasonable inferences in the light most favorable
to the nonmoving party. Tademe, 328 F.3d at 987. Nevertheless, the nonmoving

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party bears the burden of clearly identifying disputed material facts that would allow
a reasonable jury to return a verdict in favor of the nonmoving party. Id. Contrary
to Horn's assertion, nothing in our caselaw suggests that the EEOC's probable cause
determination itself relieves a claimant of this burden. Cf. Goldberg v. B. Green &
Co., 836 F.2d 845, 848 (4th Cir. 1988) ("[T]he Commission's findings are not
sufficiently probative to create a genuine issue of material fact about [the defendant's]
intent to discriminate. . . . The Commission's report merely repeats facts which [the
plaintiff] himself alleged elsewhere in this case, and then states in conclusory fashion
that those facts reflect . . . discrimination. Such findings, standing alone, are not
enough to salvage [the plaintiff's] claim.").

                              A. Wage Discrimination

      To establish a prima facie case under the Equal Pay Act, Horn must show that
the University discriminated on the basis of sex by paying different wages to
employees of opposite sexes "for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar
working conditions." 29 U.S.C. § 206(d)(1). In this context, we also analyze a Title
VII wage discrimination claim based on unequal pay for equal work under the Equal
Pay Act framework. See Tenkku v. Normandy Bank, 348 F.3d 737, 741 (8th Cir.
2003).

      It is undisputed that Horn was paid less than Witchger. Thus, Horn must come
forward with evidence that the two assistant coaching positions were "substantially
equal" in order to survive summary judgment. See Lawrence v. CNF Transp., Inc.,
340 F.3d 486, 491-92 (8th Cir. 2003) (internal marks omitted).

      Whether two jobs are substantially equal requires a practical judgment
      on the basis of all the facts and circumstances of a particular case,
      including factors such as level of experience, training, education, ability,
      effort, and responsibility. Application of the Equal Pay Act depends not

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      on job titles or classifications but on the actual requirements and
      performance of the job. In all cases, therefore, a court must compare the
      jobs in question in light of the full factual situation and the broad
      remedial purpose of the statute.

Id. at 492 (internal citations and marks omitted). While it is clear that Horn and
Witchger did not have identical duties, Horn argues that he and Witchger shared a
number of basic coaching duties, as well as a number of separate duties that required
equal amounts of skill, effort, and responsibility.

        Although Witchger and Horn may have expended equal amounts of time and
effort in fulfilling the duties of their respective positions (see Appellant's App. at 27),
Witchger's recruiting and public relations duties required skills and experience that
were distinct from those required by Horn's duties. In describing her decision to
name Witchger as the "First Assistant," Halldorson noted that Witchger's ability to
communicate with the public and her experience as a highly-recruited player in a
Division I program gave her an edge in making recruiting contacts, coordinating a
booster club, and appearing in place of Halldorson at public speaking events. Horn
also admits that Witchger initially performed many of the duties now held by an
administrative assistant. These scheduling and planning duties placed a unique
degree of responsibility on Witchger.               Initially, Halldorson was equally
complementary of Horn's abilities to identify potential recruits, break down game
tape, and coordinate with other University staff such as the trainers, equipment
managers, and academic counselor. Nevertheless, these abilities, skills, and
responsibilities differed significantly from those of Witchger.

       Essentially, Witchger's additional duties required her to serve as a public
representative of the hockey team as well as its administrative assistant, while Horn's
additional duties involved much more "behind the scenes" work. Because the two
positions required different types and degrees of skill and responsibility, they were
not "substantially equal" as required by the Equal Pay Act and Title VII. We will not

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engage in a subjective assessment of the University's decision to value the duties of
the "First Assistant" over those of the "Second Assistant" where the duties themselves
were different.

                                   B. Retaliation

       Horn alleges that the University and Coach Halldorson unlawfully retaliated
against him for filing a wage discrimination complaint with the Women's Athletic
Director. Title VII prohibits an employer from taking any adverse employment action
against an employee who "has opposed any practice made an unlawful employment
practice by this subchapter, or because [the employee] has made a charge . . . under
this subchapter." 42 U.S.C. § 2000e-3(a). The parties agree that Horn engaged in a
protected activity under Title VII. Thus, in order to survive summary judgment, Horn
must show that he suffered an adverse employment action on account of his
participation in the protected activity. See Buettner v. Arch Coal Sales Co., 216 F.3d
707, 713-14 (8th Cir. 2000), cert. denied, 531 U.S. 1077 (2001).

      "Employment actions which do not result in changes in pay, benefits, seniority,
or responsibility are insufficient to sustain a retaliation claim." Id. at 715.
Halldorson's failure to invite Horn to participate in her independently run hockey
camp was unrelated to the terms or conditions of Horn's employment. Furthermore,
Halldorson's ongoing documentation of Horn's alleged performance problems did not
adversely affect Horn's employment status with the University. Horn's working
conditions may have become somewhat uncomfortable after he filed his complaint,
but Horn fails to offer any evidence that the deterioration of his working relationship
with Coach Halldorson resulted in any materially significant disadvantage to Horn.
Indeed, Horn not only retained his job with the University, he received an offer for
an extended contract term of 12 months at an increased salary.




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                            C. Constructive Discharge

       Finally, Horn asserts that the University and Coach Halldorson created such
intolerable working conditions that he was forced to quit his job and seek
employment with another institution. "An employee is constructively discharged
when an employer deliberately renders the employee's working conditions intolerable
and thus forces [the employee] to quit [his] job." West v. Marion Merrell Dow, Inc.,
54 F.3d 493, 497 (8th Cir. 1995) (internal marks omitted). Even if Halldorson wanted
Horn to quit and took steps to prevent him from being rehired for the 1999-2000 year,
her actions do not rise to the level of a constructive discharge unless her actions
created "intolerable" working conditions for Horn.

       Horn argues that Halldorson's documentation of his alleged performance
problems and her unprofessional treatment of him in the presence of players forced
him to quit. While we agree that these conditions may have been uncomfortable or
difficult for Horn, they did not rise to the level of "intolerable working conditions"
as defined under Title VII. Cf. Duncan v. Gen. Motors Corp., 300 F.3d 928, 935-36
(8th Cir. 2002) (holding that offensive and disrespectful working conditions were not
so intolerable as to cause a reasonable person to resign), cert. denied, 123 S. Ct. 1789
(2003); Jones v. Fitzgerald, 285 F.3d 705, 716 (8th Cir. 2002) ("Constructive
discharge requires considerably more proof than an unpleasant and unprofessional
environment."); Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (8th Cir.
1999) ("The working atmosphere was not ideal, but 'a feeling of being unfairly
criticized or [having to endure] difficult or unpleasant working conditions are not so
intolerable as to compel a reasonable person to resign.'") (internal marks omitted)
(alteration in original); Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 496 (8th Cir.
1996) (noting that mere dissatisfaction with working conditions does not establish a
constructive discharge).




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Accordingly, we affirm the judgment of the district court.
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