
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1418                         DIGNA SERRANO-CRUZ, HECTOR IRIZARRY,                   AND THE CONJUGAL SOCIETY COMPRISED BETWEEN THEM,                               Plaintiffs - Appellants,                                          v.                            DFI PUERTO RICO, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                           and DiClerico,* District Judge.                                           ______________                                _____________________               Javier A. Morales-Ramos for appellants.               _______________________               Vicente J.  Antonetti, with  whom Ilsa Y.  Figueroa-Ar s and               _____________________             ______________________          Goldman Antonetti & C rdova were on brief for appellees.          ___________________________                                 ____________________                                    March 19, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA,  Chief  Judge.     Plaintiff-appellant Digna                    TORRUELLA,  Chief  Judge.                                 ____________          Serrano-Cruz  ("Serrano") formally  resigned  from  her job  with          defendant-appellee DFI  Puerto Rico,  Inc. ("DFI") on  August 22,          1994.   Four months later,  she and her  husband filed suit under          the  Age Discrimination in  Employment Act  of 1967  ("ADEA"), as          amended,  29 U.S.C.A.     621-634  (1985 & Supp.  1996), claiming          damages   resulting   from   allegedly  discriminatory,   adverse          employment actions resulting in  her constructive dismissal.  She          and  her husband now appeal the district court's grant of summary          judgment  for her employer, DFI.  We affirm, finding that Serrano          failed to establish a prima facie case under the ADEA.                                      BACKGROUND                                      BACKGROUND                    In the summary judgment  context we relate all material          facts in genuine dispute in the light most favorable to the party          resisting summary  judgment, here Serrano.   S nchez v. Alvarado,                                                       _______    ________          101 F.3d 223, 225 n.1 (1st Cir. 1996).  Serrano  worked for DFI's          predecessor firm, Aeroboutiques, from 1984 until it was purchased          by  DFI in September 1992.   Aeroboutiques, and  later DFI, owned          and  operated several  stores  selling gifts  and other  consumer          merchandise  at Luis  Mu oz  Mar n International  Airport in  San          Juan.  At the time of  the change in ownership, Serrano served as          the "assistant  general manager"  of Aeroboutiques, and,  in that          position, assisted the general  manager, supervised the operation          of  the  airport stores,  oversaw  their  physical upkeep  (e.g.,          lighting, cleanliness) and their security systems,  and performed                                         -2-          some  accounting  functions.1   When  DFI took  over  the stores,          Serrano   was   offered,   and    accepted,   the   position   of          "comptroller."2  As comptroller  Serrano continued to perform her          previous   managerial  duties,  with  regular  duties  including:          maintaining  the   security  system  for   the  airport   stores,          supervising store employees and arranging employee vacation time,          having responsibility for the  keys to the stores,  and attending          security  and employee  management  meetings.   In addition,  she          assumed accounting  responsibilities such as  preparing quarterly          reports and keeping the payroll accounts.                    The events  giving rise to  her suit began  in February          1994,  when the general manager (Manny  Lozano) and the president          (Luis  Bared) of  DFI,  Serrano's superiors,  began reducing  her          responsibilities.  She lost  managerial control over the security          system  for the  stores,  as  well  as  control  over  the  keys.          Serrano's role in personnel selection was also decreased, and she          was excluded from meetings she had previously attended.                      Through a letter  to Serrano dated June  21, 1994, Luis          Bared  indicated that  Serrano was on  a 90-day  probation period          effective that day.  The  letter cited DFI's dissatisfaction with          Serrano's "negligent"  handling of certain rent  payments for the                                        ____________________          1  Prior to being assistant general manager, Serrano had occupied          the position of "comptroller" at Aeroboutiques, in which she  was          responsible for all of the accounting functions of the company as          well  as for  general  supervision.   When  she became  assistant          general manager, her accounting responsibilities were reduced.           2  The  record contains inconsistent references to  this position          as either "comptroller" or "controller."                                          -3-          airport stores.   Bared indicated that during  the 90-day period,          he  and  Manny Lozano  would  be  evaluating her  performance  as          comptroller.  Serrano denies that she made mistakes in the course          of discharging her accounting duties as comptroller.                     On July  18, 1994,  before the 90-day  probation period          had  ended,  Lozano  informed Serrano  that  DFI  had  decided to          transfer  her  to  a  newly  created  position  entitled  "retail          manager."    Serrano refused the new position, stating that being          fired would  be preferable to the  new position.  In  a letter to          Serrano  dated July 21,  1994, Lozano  stated that  Serrano would          receive the same salary  and benefits in the new position  as she          had received as comptroller, and that she would be given two days          of  paid  leave  to reconsider  her  decision  to  turn down  the          position.  Lozano's July 21 letter further states that, as retail          manager,  Serrano "would  supervise  and be  responsible for  the          retail operation  of our San Juan  International Airport stores."          After taking a month of leave, Serrano formally resigned from DFI          on August  22, 1994, and now  claims she was forced  to resign by          DFI's unacceptable job transfer.                    Serrano  was 53 at the  time her suit  was initiated in          December  1994.  There is  no direct evidence  that DFI's actions          were taken because  of Serrano's  age.  Appellant  alleges a  few          facts  that might suggest  discriminatory animus on  the basis of          her age.   These are:  that she was  replaced by a  woman aged 25          with roughly  the same  qualifications and with  less experience;          that  she was treated  differently from younger  employees by DFI                                         -4-          management by  not receiving free lipstick samples  and not being          thrown a birthday party.                    The  district  court  granted  DFI's  summary  judgment          motion, ruling  that  Serrano failed  to  establish  constructive          dismissal as part of  her prima facie case of  age discrimination          because she  did not show that  there was a problem  with the new          position that would compel a reasonable person to resign.  Before          us on appeal  is Serrano's ADEA claim against DFI,  her state law          claims having been dismissed without prejudice.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    We  review  the  district  court's  grant   of  summary          judgment  de novo.  Mulero-Rodr guez  v. Ponte, 98  F.3d 670, 672                    __ ____   ________________     _____          (1st Cir. 1996).  Summary judgment is properly granted where "the          pleadings,   depositions,   answers   to   interrogatories,   and          admissions on file, together  with affidavits, if any, show  that          there is  no genuine issue as  to any material fact  and that the          moving party is entitled to a judgment as a matter of law."  Fed.          R. Civ. P. 56(c).                     Under Rule 56, once the moving party has pointed to the          absence of adequate evidence  supporting its opponent's case, the          onus is on the party resisting the motion for summary judgment to          respond  by presenting facts that  show that there  is a "genuine          issue  for trial."   LeBlanc v. Great  American Ins. Co.,  6 F.3d                               _______    ________________________          836, 841-42 (1st Cir.  1993) (quoting Anderson v. Liberty  Lobby,                                                ________    _______________          Inc.,   477  U.S.  242,  256  (1986)).    To  oppose  the  motion          ____          successfully,  the  nonmoving  party  "may  not  rest  upon  mere                                         -5-          allegations or denials of  his pleading."  Anderson, 477  U.S. at                                                     ________          256. "The nonmoving party must  establish a trial-worthy issue by          presenting  'enough  competent  evidence  to   enable  a  finding          favorable  to  the nonmoving  party.'"   LeBlanc,  6 F.3d  at 842                                                   _______          (quoting Anderson, 477 U.S. at 249).                   ________                                      DISCUSSION                                      DISCUSSION                    The  ADEA   makes  it  unlawful  for   an  employer  to          "discharge any  individual or otherwise discriminate  against any          individual with  respect to his compensation,  terms, conditions,          or privileges  of employment, because of  such individual's age."          29 U.S.C.A.    623(a)(1) (1985).   In  a wrongful  discharge case          under the  ADEA,  the  plaintiff  bears the  ultimate  burden  of          proving that  "he would  not have  been fired  but for his  age."          Freeman  v.  Package Mach.  Co., 865  F.2d  1331, 1335  (1st Cir.          _______      __________________          1988).   Where, as here, there is no direct evidence showing that          the  employer's  actions  were  motivated by  age,  the  familiar          McDonnell Douglas framework governs.  See McDonnell Douglas Corp.          _________________                     ___ _______________________          v.  Green, 411 U.S. 792,  802-05 (1973); Greenberg  v. Union Camp              _____                                _________     __________          Corp., 48 F.3d 22, 26-27 (1st Cir. 1995).  Under   the  McDonnell          _____                                                   _________          Douglas framework, the employee  must initially come forward with          _______          sufficient evidence  to  establish  a  prima facie  case  of  age                                                 _____ _____          discrimination.  Here,  Serrano needed to establish that: (i) she          is  over forty  years  of  age;  (ii)  her  job  performance  was          sufficient to  meet DFI's legitimate job  expectations; (iii) she          was constructively discharged; and  (iv) DFI sought a replacement          with  roughly similar  skills or  qualifications.   Greenberg, 48                                                              _________                                         -6-          F.3d at 26.    Once the plaintiff  has met this modest burden,  a          presumption of discrimination arises that  shifts the onus to the          employer  to  come forward  with a  legitimate, nondiscriminatory          reason for  its actions.    Id.   If the  employer  does so,  the                                      ___          presumption of age discrimination  vanishes and the burden shifts          back to the plaintiff  to show that the employer's  justification          is  pretextual.   The  burden of  persuasion,  as opposed  to the          burden of production, rests with the plaintiff throughout.                    The district court found  that although there may exist          a factual dispute between  the parties as to whether  Serrano met          DFI's legitimate job expectations  (the second prong of McDonnell                                                                  _________          Douglas),  or indeed  as  to whether  DFI's reasons  for reducing          _______          Serrano's  duties  or  transferring  her job  were  pretexts  for          improper age discrimination, Serrano  failed to establish a prima          facie case  because, on undisputed  facts, she did  not establish          constructive dismissal (prong three).  On appeal Serrano contends          that there  is  a triable  issue  as to  constructive  dismissal,          making  summary  judgment  improper,  and also  contends  that  a          finding of  "adverse employment actions" may  provide grounds for          relief  even  if  a  finding of  constructive  dismissal  is  not          supported by the record.  We assess each argument in turn.          I.  Constructive Dismissal          I.  Constructive Dismissal                    We must consider de  novo whether, as a matter  of law,                                     __  ____          Serrano failed  to make  a prima  facie  showing of  constructive          discharge.    We have  long  applied an  "objective  standard" in          determining whether an employer's actions have forced an employee                                         -7-          to resign.  See, e.g., Calhoun v. Acme Cleveland Corp., 798  F.2d                      ___  ____  _______    ____________________          559, 561 (1st Cir. 1986).  For the transfer proposed by DFI to be          deemed  a constructive  discharge,  "'the trier  of fact  must be          satisfied  that the  new working  conditions would  have  been so          difficult  or   unpleasant  that  a  reasonable   person  in  the          employee's shoes  would have  felt compelled  to  resign.'"   Id.                                                                        ___          (quoting Alicea Rosado v. Garc a Santiago, 562 F.2d 114, 119 (1st                   _____________    _______________          Cir. 1977)).   An  employee may not,  therefore, be  unreasonably          sensitive to a change in job responsibilities.                      It  is  undisputed  that  Serrano,   when  offered  the          position of  "retail manager," was  promised the same  salary and          benefits she  enjoyed as comptroller.   Salary considerations are          important in  determining whether  a job  transfer can support  a          claim  of constructive dismissal.   See Greenberg, 48  F.3d at 27                                              ___ _________          (noting  no change in salary in course of finding no constructive          dismissal)  (collecting cases);   Stephens  v. C.I.T.  Group, 955                                            ________     _____________          F.2d  1023, 1027 (5th Cir.  1992) (noting reduction  of salary in          course  of finding constructive  dismissal); Pe a  v. Brattleboro                                                       ____     ___________          Retreat,  702 F.2d  322 (2d Cir.  1983) (finding  no constructive          _______          discharge where  job responsibilities  were  changed without  any          reduction in  pay); cf. N  ez-Soto  v. Alvarado,  918 F.2d  1029,                              ___ __________     ________          1030-31  (1st Cir.  1990) (in  political demotion  case, demotion          without   salary   cut   found   insufficient   for  constructive          dismissal).    Although  important,  the  fact  that  salary  and          benefits  have not been  decreased has  never been  held to  be a          conclusive  factor;   courts applying  the objective  standard in                                         -8-          ADEA  constructive dismissal  cases consider  a variety  of often          case-specific  factors.     See  Greenberg,  48   F.3d  at  27-29                                      ___  _________          (discussing salary in addition to assessing new work conditions);          Stetson v. NYNEX Serv.  Co., 995 F.2d 355, 360-62  (2d Cir. 1993)          _______    ________________          (noting  no decrease in  salary, but  focusing mainly  on working          conditions);   see also Flaherty  v. Gas Research  Inst., 31 F.3d                         ________ ________     ___________________          451, 457 (7th Cir. 1994) ("[A]n employer does not insulate itself          from liability  for discrimination simply by  offering a transfer          at the same salary and benefits.").  Common sense suggests that a          job transfer  without a  reduction  in salary  and benefits  may,          under certain  circumstances,  be unacceptable  to  a  reasonable          person  who  is  overqualified   and  humiliated  by  an  extreme          demotion, or underqualified and essentially "set up to fail" in a          new position.  With this in mind, we turn to Serrano's situation.                    In the present case,  the fact that after  her transfer          Serrano  would remain  the  second highest  salaried employee  in          DFI's  airport organization  takes on  great importance,  for the          simple reason  that this  is one  of few  concrete facts  we have          regarding the position  that she  was offered.   Serrano, by  not          trying  out,  or  finding  out  more  about,  the  newly  created          position, cannot possibly muster  proof that, in the course  of a          trial, could lead a jury to find that the newly created  position                                         -9-          would compel a  reasonable person with  her background to  refuse          the offer and resign.3                      The precise contours of the new position, which appears          to  have been  created  for Serrano,  are  unclear.   In  view of          Lozano's  characterization of the  new position, in  his July 21,          1994  letter to Serrano, as one in which Serrano "would supervise          and  be  responsible for  the retail  operation  of our  San Juan          International Airport stores," it  is impossible to conclude that          the position would compel a  reasonable person in Serrano's shoes          to quit.  Based on Serrano's  own sworn statements, she had  held          general supervisory  duties  over the  stores  for  Aeroboutiques          (DFI's   predecessor),   and   continued  to   hold   supervisory          responsibilities while also assuming  accounting responsibilities          in  her position as comptroller  for DFI.   Serrano considers the          move  from comptroller  to "retail  manager" to be  a devastating          change  in  status, but  cannot point  to specific  problems that          would  arise,  other than  the fact  that  she is  unqualified to                                        ____________________          3   Appellant's basic  contention regarding  the new  position --          that it involved sales tasks she was not qualified or experienced          enough  to carry  out --  rests on  bare allegations  that simply          cannot be verified, because the  position of "retail manager" did          not exist before it  was specially created for Serrano.   It also          follows that  plaintiff's argument that the  district court erred          by  not determining the exact nature of her duties as comptroller          are misdirected.  No additional precision regarding the nature of          her  position as comptroller could help  her, in view of the lack          of evidence regarding her proposed position.  Moreover, Serrano's          background included  a broad variety of  managerial tasks besides          strictly financial ones,  having served  previously as  assistant          general  manager as  well as  comptroller.   When we  do consider          Serrano's  description  of her  duties,  we find  that  the fluid          nature of managerial responsibilities  in DFI's organization only          makes  speculation about  the position  of "retail  manager" more          unreliable.                                         -10-          "push" merchandise.   She cannot prove,  however, that the  newly          created position  of "retail manager" would  involve a sufficient          amount  of daily,  hands-on  sales work  to  compel a  reasonable          person in  Serrano's position to resign.   Serrano's constructive          discharge claim,  therefore, rests on  speculations regarding the          new position,  as well as  on her sworn statements  to the effect          that  supervising retail sales would  harm her dignity.   Loss of          prestige  in a  job transfer,  standing  alone, cannot  support a          finding of constructive  discharge.  See Alicea  Rosado, 562 F.2d                                               ___ ______________          at 119-20 ("[A]  limited blow to one's pride or prestige does not          provide reason  enough to  resign during  whatever period  may be          required to seek judicial relief.").                      Of course we cannot  state with absolute certainty that          the position offered to Serrano  would not have turned out to  be          strongly  objectionable  to  a   reasonable  person,  as  Serrano          suggests.  But,  in the summary judgment context, we  need not do          so.   The decisive consideration  here is that,  by not accepting          the newly created and  ambiguous position, Serrano foreclosed the          possibility  of presenting  concrete  evidence, rather  than mere          assertions, to a  jury regarding  the nature of  her new  working          conditions.   See Fed. R. Civ.  P. 56(e);  Anderson,  477 U.S. at                        ___                          ________          257 (to oppose  summary judgment motion, plaintiff cannot rely on          assertions in pleadings and must come forward  with evidence that          a jury could  consider).   We have long  expected that those  who          seek to initiate ADEA claims will do so while still employed, and          the  instant case reminds us  of the wisdom  of this expectation.                                         -11-          See, e.g., Cazzola  v. Codman & Shurtleff, Inc.,  751 F.2d 53, 55          ___  ____  _______     ________________________          (1st Cir. 1984)  ("Even the victim of  unlawful discrimination is          expected  to  seek  legal  redress while  still  employed  unless          actually fired,  or constructively  discharged due to  a 'drastic          reduction in the quality of working conditions.'" (quoting Alicea                                                                     ______          Rosado,  562 F.2d  at  119-20)).   Here,  with no  evidence of  a          ______          drastic  reduction  in  work  conditions  sufficient  to  support          Serrano's resignation, summary judgment is appropriate.                    Moreover,  other  factual   circumstances  tending   to          strengthen  a case  for constructive  dismissal were  not present          here.  There was no evidence, for  example, of suggestions by the          management  of DFI that Serrano  take an early  retirement.4  Cf.                                                                        ___          Calhoun,  798  F.2d  at   564  (jury's  finding  of  constructive          _______          discharge bolstered by evidence  of repeated inquiries  regarding          early  retirement).   There was  also very little  in the  way of          evidence showing animosity toward Serrano on account of her age.5          Cf.  Greenberg,  48  F.3d  at  28  (finding  of  no  constructive          ___  _________                                        ____________________          4  Serrano's  contention that DFI's grant of a  48-hour period to          reconsider the offered job  transfer -- one that she  had already          turned down -- was a "humiliating action" designed to lead her to          resign is  very difficult to  accept.  The  July 21, 1994  letter          from   Lozano    to   Serrano   which   describes   the   48-hour          reconsideration period also states, "I want to make it absolutely          clear  to you that no one in  the Company (DFI Puerto Rico, Inc.)          intends or desires to fire you as an employee of DFI."          5  On appeal, Serrano places great emphasis on the assertion that          she  was replaced, in her  capacity as comptroller,  by a younger          woman.  Assuming this is correct,  she does not contend that this          occurred prior to  her resignation.   Therefore, while this  fact          may be  related to  issues  of pretext,  it is  unrelated to  our          finding  that Serrano  fails to  satisfy the  third (constructive          discharge) part of the McDonnell Douglas prima facie case.                                 _________________                                         -12-          discharge  "buttressed  by the fact  that [the employee]  couples          his  allegation  of  constructive  discharge  with  virtually  no          evidence that [the employer's]  motives stemmed from an animosity          towards  age.").   All  of these  considerations  lead us  to the          conclusion that  the district  court properly found  that Serrano          failed to establish a prima facie case.           II.  Adverse Employment Actions          II.  Adverse Employment Actions                    Serrano  contends  that  the district  court  erred  by          failing to  consider whether  she had  established a  prima facie          case of  "adverse employment actions," as  distinguished from the          issue  of constructive  dismissal.   Based on  the recitation  of          damages  in Serrano's  amended  complaint, however,  her suit  is          plainly  one seeking a remedy for improper dismissal, and not one          seeking a remedy for adverse employment actions.  Her allegations          regarding  damages  consist of  the  following:  lost income  and          benefits  from the  date she  was forced  to resign,  and various          other  damages she and her  husband have incurred  arising out of          the economic hardship brought about by her dismissal.  All     of          Serrano's alleged economic  harms would not  have come about  had          Serrano accepted the position, which  offered the same salary and          benefits.  See  Shealy v. Winston, 929  F.2d 1009, 1012  n.2 (4th                     ___  ______    _______          Cir. 1991)  (finding no constructive discharge  and holding there          is no further ground  for relief on theory of  adverse employment          action, because "appellant would then face the barrier of proving          any damages when he clearly would have been employed . . . at the          same salary and benefits.").  For example, the removal of various                                         -13-          responsibilities  from  Serrano  in   the  months  preceding  the          proposed  transfer,  if  they  are seen  as  separable  from  her          resignation, cannot, even if proven to be discriminatory, support          this  suit for lost income  and benefits.   Given the way Serrano          has framed this lawsuit,  relief cannot stem from a  finding that          the  actions  of DFI,  short of  leading  to her  dismissal, were          discriminatory adverse employment actions.6                                      CONCLUSION                                      CONCLUSION                    For the  reasons stated  in this opinion,  the district          court's grant of summary judgment is affirmed.                                               ________                                        ____________________          6  In fact,  for substantially the reasons discussed  with regard          to  constructive dismissal,  Serrano fails  to establish  a prima          facie case under  the ADEA  of adverse employment  action on  the          basis  of the  proposed job transfer.   See Flaherty,  31 F.3d at                                                  ___ ________          457;  Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 135-                _____    ______________________________          36 (7th Cir.  1993) (finding failure to make prima  facie case of          adverse employment action where employee, claiming adverse change          in job responsibilities, did not accept transfer position at same          salary  and therefore  could not  substantiate claims  about that          position).                                         -14-
