     Case: 16-11651      Document: 00514121031         Page: 1    Date Filed: 08/17/2017




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

                                    No. 16-11651                                    FILED
                                  Summary Calendar                            August 17, 2017
                                                                               Lyle W. Cayce
REINHARD DRECHSEL,
                                                                                    Clerk


              Plaintiff - Appellant

v.

LIBERTY MUTUAL INSURANCE COMPANY, doing business as Peerless
Insurance Company,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:14-CV-162


Before JONES, WIENER, and, CLEMENT, Circuit Judges.
PER CURIAM:*
       Reinhard Drechsel worked for Liberty Mutual Insurance Company
(“Liberty”). After leaving the company in 2012, Drechsel sued Liberty, alleging
inter alia age discrimination under the Texas Commission on Human Rights
Act of 1983 (“TCHRA”) and Age Discrimination in Employment Act of 1967
(“ADEA”), disability discrimination under the TCHRA and American with


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Disabilities Act of 1990 (“ADA”) as amended by the ADA Amendments Act of
2008 (“ADAA”), and retaliation in violation of the Family Medical Leave Act
(“FMLA”). The district court granted Liberty’s motion for summary judgment
and dismissed all of Drechsel’s claims. Drechsel appeals. We AFFIRM.
                                        I
      Drechsel was employed as a claims adjuster at Liberty’s predecessor
beginning in 1990 and continued after Liberty acquired the company until he
left in 2012. During his time at the company, Drechsel took multiple instances
of medical leave, including leave in 2012 for depression, anxiety, and high blood
pressure. After that last period of medical leave, Liberty’s third-party
administrator determined that Drechsel was not eligible for short-term
disability benefits and denied his claim. Drechsel resigned his position soon
after. He was 60 years old at the time. Months after leaving the company,
Drechsel filed a charge with the Equal Employment Opportunity Commission
alleging age discrimination, disability discrimination, and retaliation. Liberty
moved for summary judgment on all of Drechsel’s claims; the district court
granted the motion and dismissed the case.
                                       II
      “We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.” Rogers v. Bromac
Title Servs., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute of material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether a dispute of material fact exists, we “construe[]
all facts and inferences in the light most favorable to the nonmoving party,”
bearing in mind that “[s]ummary judgment may not be thwarted by
conclusional allegations, unsupported assertions, or presentation of only a


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scintilla of evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)
(internal quotation marks omitted).
                                        III
      A. Age Discrimination Claims
      Drechsel alleges that Liberty discriminated against him on account of
his age in violation of the ADEA and TCHRA. See 29 U.S.C. §§ 621–634; Tex.
Lab. Code Ann. § 21.051. To establish a prima facie case of age discrimination,
Drechsel must show:
      (1) he is a member of a protected class, (2) he was qualified for the
      position at issue, (3) he was the subject of an adverse employment
      action, and (4) he was treated less favorably because of his
      membership in that protected class than were other similarly
      situated employees who were not members of the protected class,
      under nearly identical circumstances.

Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259(5th Cir. 2009). There is no dispute
that Drechsel satisfies the first two prongs. But the district court concluded
that he could not show any adverse employment action was taken against him
when compared to other Liberty employees in nearly identical circumstances.
Accordingly, the district court granted Liberty summary judgment on
Drechsel’s age discrimination claims.
      Drechsel argues on appeal that there are disputed issues of material fact
regarding whether Liberty took an adverse employment action against him.
Specifically, he contends that: (1) he was paid less than his younger colleagues;
(2) he was not promoted because of his age; and (3) Liberty made his working
conditions so intolerable as to constitute a constructive discharge. We address
each in turn.
           a. Compensation
      Drechsel argued below that he was paid less than younger, otherwise
similarly situated Liberty employees. But the comparators Drechsel pointed to


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all held the title Claims Specialist III (“Specialist III”); Drechsel was a Claims
Specialist II (“Specialist II”). The proffered comparators reported to a different
supervisor, and handled more complex claims with higher payouts.
Accordingly, the district court concluded that the higher paid employees were
not in “nearly identical” circumstances when compared with Drechsel.
       Drechsel argues on appeal that there are disputed issues of material fact
as to whether he fulfilled substantially the same job responsibilities as
Specialist III’s, despite his title of Specialist II. He contends that, because there
is record evidence he sometimes handled cases that would normally be within
the purview of a Specialist III, he is entitled to use Specialist III’s as
comparators for purposes of determining whether his lesser compensation
constituted an adverse employment action. We disagree.
       Employment actions “will be deemed to have been taken under nearly
identical circumstances when the employees being compared held the same job
or responsibilities, shared the same supervisor or had their employment status
determined by the same person, and have essentially comparable violation
histories.” Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 893 (5th Cir. 2012)
(emphasis added) (quoting Lee, 574 F.3d at 260). Drechsel points to record
evidence that he sometimes took on job responsibilities that would normally be
given to a Specialist III. But he points to no evidence that he always or even
usually carried the same responsibilities as Specialist III’s. Furthermore, even
if such evidence did exist, Drechsel concedes that his supervisor did not
supervise Specialist III’s. As such, Specialist III’s cannot be considered “nearly
identical” comparators to Drechsel. 1 Drechsel can point to no Specialist II’s


       1 Drechsel mistakenly argues that a plaintiff can establish a nearly identical
comparator by showing either similar job responsibilities or the same supervisor. Strangely
enough, he cites to precisely the portion of Turner quoted above to ostensibly support this
contention, even though the cited portion of that opinion expressly contradicts his argument.

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who were paid more than he—indeed, the record evidence shows that he was
the highest paid employee with that title. Drechsel cannot establish an adverse
employment action by arguing that he was not paid as much as those who
occupied more advanced positions within the Liberty hierarchy.
           b. Promotion
      Drechsel contends that Liberty took an adverse employment action
against him by not promoting him to Specialist III. In order to make out a
prima facie failure-to-promote case, Drechsel must show that: “(1) [he] was
within a protected class; (2) [he] was qualified for the position sought; (3) [he]
was not promoted; and (4) the position sought was filled by someone outside
the protected class.” Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.
2001). On appeal, the parties dispute at length whether Drechsel can show that
he sought a promotion, given that he never formally applied for the position of
Specialist III. But the district court did not decide the issue on that ground.
Rather, it concluded that, because Drechsel could not show that a younger
employee was promoted to Specialist III during the appropriate time frame, he
could not satisfy prong four. We agree.
      The key legal question at issue arises out of the fact that Drechsel was
required to file an EEOC charge of discrimination within 300 days “after the
alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); 29
U.S.C. § 626(d)(1)(A)-(B). The district court calculated that Drechsel could not
recover for any of Liberty’s conduct occurring before March 10, 2012. Drechsel
does not challenge that calculation. Drechsel highlighted one Liberty employee
who was promoted to Specialist III to support his argument in the district
court, but that person was promoted in February, 2010–more than two years
before the applicable period. Because Drechsel could not point to any younger
employee who was promoted to Specialist III after March 10, 2012, the district
court concluded that he did not make out a claim that Liberty’s failure to

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promote him was an adverse employment action within the meaning of the
applicable statutes.
       Drechsel argues on appeal that the district court erred in requiring him
to show both that he was not promoted after March 10, 2012 and that another
younger employee was promoted during that time frame. Drechsel contends
that he “is not required to show that persons outside his protected class were
promoted within the 300 day period, but rather that he was discriminated
against within that time period.” Drechsel points to no caselaw to support this
contention, and with good reason: the argument misunderstands the
conceptual underpinnings of the test. The purpose of requiring a plaintiff to
show a younger comparator who was promoted is that said showing is a
necessary component of establishing discrimination in the first instance. If no
employees whatsoever are promoted to the position at issue in the applicable
time frame, then that tends to undermine the argument that a specific
employee was not promoted for discriminatory reasons. Drechsel cannot
establish that he was not promoted for discriminatory reasons simply because
a younger employee was promoted years before the timeframe covered by his
complaint. 2 Consequently, in the absence of any evidence that a younger
similarly situated Liberty employee was promoted in the applicable time
frame, Drechsel’s contention fails.
              c. Constructive Discharge
       Drechsel argues that Liberty took an adverse employment action against
him on account of his age in the form of constructive discharge. Constructive


       2 Drechsel also argues on appeal that he satisfied the fourth prong because record
evidence indicates that two younger Liberty employees were promoted to Specialist III
months after he was constructively discharged. Of course, if Drechsel was not constructively
discharged but rather simply quit his job, then his employer’s actions after he left have no
bearing on any adverse employment determination. We conclude below that Drechsel was
not constructively discharged; this argument fails accordingly.

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discharge occurs when an employer makes an employee’s working life so
miserable as to effectively compel resignation. The law views such instances
as if the employee was fired, even though he technically resigned.
“Demonstrating constructive discharge imposes a high burden” on a plaintiff.
Robinson v. Waste Mgmt. of Tex., 122 F. App’x 756, 758 (5th Cir. 2004). To
prove constructive discharge, a “plaintiff must establish that working
conditions were so intolerable that a reasonable employee would feel compelled
to resign.” Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d
157, 167 (5th Cir. 2007) (quoting Brown v. Kinney Shoe Co., 237 F.3d 556, 566
(5th Cir. 2001)). We have identified a variety of factors that courts may
consider in determining whether an employee was constructively discharged,
including: “(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; or (7) offers of early retirement.” Brown v. Bunge Corp., 207 F.3d
776, 782 (5th Cir. 2000). Drechsel relied on three factors in the district court,
namely, discriminatory lack of promotion, badgering and harassment, and a
heavier workload than his peers.
      Because Drechsel cannot establish that Liberty’s failure to promote him
was discriminatory—as noted above—that factor is not applicable to his
circumstances. As for badgering and harassment, Drechsel argues that emails
from his supervisor “requesting status updates on particular claims, progress
with license applications and issues with his claims diary” were sufficient to
constitute constructive discharge. The district court rejected this argument,
and rightly so. Drechsel points to no record evidence that the emails in question
were unusually abrasive in tone or substance, or that they were somehow


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outside the bounds of reasonable supervisory behavior. This leaves only
Drechsel’s allegation that he was given a substantially heavier workload than
his peers. The evidence in the record indicates that the number of claims
assigned to individual Specialist II’s varied quite a bit month to month. 3 There
were some months when Drechsel was given more than others, but there were
also months when he was not. We conclude that Drechsel’s allegation of a
heavier workload, based as it is on weak record evidence, is insufficient on its
own to meet the “high burden” of establishing constructive discharge.
                                     *      *      *
      Because Drechsel cannot establish any dispute of material fact as to
whether Liberty took any adverse employment action against him, his age
discrimination claims fail as a matter of law. Accordingly, we AFFIRM the
district court’s grant of summary judgment on Drechsel’s age discrimination
claims.
      B. Disability Discrimination Claims
       To make out a prima facie case of disability discrimination under the
ADA and TCHRA, Drechsel must prove: “(a) [he] is disabled, has a record of
having a disability, or is regarded as disabled, (b) [he] is qualified for [his] job,
(c) [he] was subjected to an adverse employment action on account of [his]
disability or the perception of [his] disability, and (d) [he] was replaced by or
treated less favorably than non-disabled employees.” Equal Emp’t Opportunity
Comm’n v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009).
Drechsel conceded below that he was not disabled and did not have a record of
disability. He instead rested his claim on the theory that Liberty employees



      3  Liberty strongly disputes Drechsel’s interpretation of the case assignment data at
issue here. We need not delve into this dispute, however, because we conclude that Drechsel
cannot establish constructive discharge even accepting his reading of the data.

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regarded him as disabled when he returned to work following his final stretch
of medical leave.
       The district court concluded that Drechsel could not establish that
Liberty regarded him as disabled because Drechsel never informed any
employee at Liberty that he had been diagnosed with anxiety and depression. 4
Accordingly, the district court held that Drechsel could not establish the first
prong and dismissed his disability discrimination claims. The only evidence
Drechsel cites on appeal in arguing that there is a dispute of material fact on
the issue is a doctor’s note that stated he “was unable to work due to medical
necessity” and a comment to his supervisor to the effect that he was
“experiencing serious health issues.” This paltry evidence is not enough to raise
any material dispute as to whether Liberty regarded Drechsel as disabled.
       Even if we did accept that the district court erred in resting its holding
on the first prong, we would still conclude that Liberty is entitled to summary
judgment. The only adverse employment action Drechsel alleges with regard
to his disability claims is constructive discharge. As noted above, however,
Drechsel has not established any basis for the contention that he was, in fact,
constructively discharged. Thus, even if Drechsel could get past the first prong,
his prima facie case would sill fail at prong three. The district court’s grant of
summary judgment as to Drechsel’s disability discrimination claims is
AFFIRMED.




       4 On appeal Drechsel accurately notes that the district court erroneously applied
outdated caselaw interpreting the “regarded as” prong. The cases cited by the district court
preceded the 2008 amendments to the ADA, which altered that standard somewhat. This
error was clearly harmless, however, because: (1) Drechsel still cannot establish any dispute
of material fact as to whether he was regarded as disabled applying the appropriate standard;
and (2) even if he could, he cannot show any adverse employment action was taken against
him.

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      C. FMLA Retaliation
      Drechsel’s final argument on appeal is that the district court erred in
granting Liberty summary judgment as to Drechsel’s claim that Liberty
retaliated against him when he returned to work from FMLA leave. To make
out a claim for retaliation under the FMLA, Drechsel must show: “[1] he was
protected under the FMLA; [2] he suffered an adverse employment action; and
[3] he was treated less favorably than an employee who had not requested leave
under the FMLA or the adverse decision was made because he sought
protection under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cnty,
446 F.3d 574, 583 (5th Cir. 2006). The only adverse employment actions
Drechsel proffers to support his FMLA argument are the same ones described
above: lack of promotion, disparate compensation, and constructive discharge.
Because we find that Drechsel has not pointed to sufficient record evidence to
create any dispute of material fact as to any of these, we conclude that he has
not established a prima facie showing of adverse employment action. His
FMLA contention therefore fails.
                                      IV
      The district court’s grant of summary judgment is AFFIRMED.




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