                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                                                                              February 28, 2005
                     IN THE UNITED STATES COURT OF APPEALS
                                                                            Charles R. Fulbruge III
                              FOR THE FIFTH CIRCUIT                                 Clerk

                                __________________________

                                       No. 04-11034
                                    Summary Calendar
                                __________________________


DOYLE A. PETERSON,
                                                                     Petitioner - Appellant,

versus

CITY OF DALLAS, doing business as WRR Classical, 101.1 FM,
a Political Subdivision,

                                                                     Defendant - Appellee.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Northern District of Texas
                                   (No. 3:03-CV-75-M)
                 ___________________________________________________


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         Plaintiff-appellant Doyle A. Peterson appeals the district court’s summary judgment

dismissal of his age discrimination claim against his former employer, WRR, a classical




         *
        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not be published and is not precedent except under the limited circumstances set forth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.
radio station owned by the City of Dallas. Because Peterson cannot show that he suffered

an adverse employment action, we affirm the district court’s holding that Peterson failed

to make out a prima facie case of age discrimination.

                             I. FACTS AND PROCEEDINGS

       In March 1997, at the age of fifty-eight, Peterson was hired as the General Sales

Manager of WRR. He supervised eight sales representative positions and a sales assistant.

Peterson’s compensation included a salary plus four percent commission on 1) the gross

sales generated by the sales representatives, 2) sales generated by Allied Radio Partners,

an organization that marketed WRR advertising to national markets, and 3) house accounts

that Peterson worked on directly. In 2001, WRR divided its sales department into local

and national divisions to increase focus on its national sales. As part of this new structure,

the position of National Sales Manager was created. The National Sales Manager position

involved being responsible for sales beyond the local market and working closely with

Allied Radio Partners. Peterson did not apply for the National Sales Manager position.

       As a result of WRR’s reorganization, Peterson was reclassified as the Local Sales

Manager. He still supervised the same eight sales positions and received the same salary

and commission rate. However, Peterson no longer oversaw national accounts, either

directly as house accounts or through his sales representatives. Peterson filed a grievance

with the City of Dallas contending that he had been demoted. The grievance was denied

and Peterson resigned on June 11, 2002. In December 2002, Peterson filed an age

discrimination employment suit against the City of Dallas under the Age Discrimination


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in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Texas Commission on

Human Rights Act (“TCHRA”), TEX. LABOR CODE ANN. § 21.001 et seq. After the case was

removed to federal district court, the City of Dallas filed a motion for summary judgment,

which the court granted on July 29, 2004. Peterson filed a timely notice of appeal.

                              II. STANDARD OF REVIEW

       We review a district court’s summary judgment dismissal of Peterson’s claims de

novo. Gibson v. U.S. Postal Serv., 380 F.3d 886, 888 (5th Cir. 2004). Summary judgment

is appropriate only when, “viewing the evidence in the light most favorable to the

nonmoving party, the record indicates that there is ‘no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.’” Am. Int’l Specialty

Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003) (quoting FED. R. CIV.

P. 56(c)).

                                    III. DISCUSSION

       Peterson argues that the district court erred in granting summary judgment because

Peterson established a prima facie case of employment discrimination. Under the ADEA,

it is unlawful for an employer “to fail or refuse to hire or 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. §

623(a)(1). ADEA cases are typically bifurcated into two distinct groups: those in which

the plaintiff relies upon direct evidence to establish his case of age discrimination, and

those in which the plaintiff relies upon purely circumstantial evidence. See, e.g., Sandstad


                                             3
v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). Plaintiffs presenting direct

evidence of age discrimination may proceed under the “mixed-motive” analysis set forth

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).              Plaintiffs producing only

circumstantial evidence must negotiate the burden-shifting analysis set forth in McDonnell

Douglas Corp. v. Green. 411 U.S. 792 (1973). Peterson proceeds under this latter approach.



       Under the McDonnell Douglas framework, a plaintiff must first establish a prima

facie case of age discrimination by showing that (1) he was a member of a protected

class—those persons over the age of forty; (2) he was qualified for the position that he held;

(3) he suffered an adverse employment action; and (4) he was either i) replaced by

someone outside the protected class, ii) replaced by someone younger, or iii) otherwise

discharged because of his age. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142

(2000); Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (citations and

internal quotation marks omitted); see also Brown v. CSC Logic, Inc., 82 F.3d 651, 654 (5th

Cir. 1996). If the plaintiff establishes a prima facie case, the burden of production shifts to

the defendant to provide a legitimate nondiscriminatory reason for its employment action.

See, e.g., Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir. 2002). If the defendant

meets its burden, the presumption of discrimination created by the plaintiff’s prima facie

case disappears and the plaintiff must meet its ultimate burden of persuasion on the issue

of intentional discrimination. Id.

       Thus, to establish a prima facie case of age discrimination, Peterson must show that


                                              4
he is over forty, that he was qualified for General Sales Manager position, that he suffered

an adverse employment action, and that he was replaced by someone younger or treated

less favorably than similarly situated younger employees. While it is uncontested that

Peterson is a member of a protected class, Peterson and the City of Dallas dispute the

remaining requirements of a prima facie case.

       Because we conclude that Peterson fails to show that he experienced an adverse

employment action, we need not discuss the other factors. Peterson contends that he

suffered an adverse employment action both by being demoted and constructively

discharged. As evidence of his demotion, Peterson points to his loss of national and house

accounts, which deprived him of compensation generators. Peterson states that his income

as the Local Sales Manager was thirty-five to forty percent lower than General Sales

Manager income.

       To establish a demotion, an employee must show a loss in duties, benefits, or

compensation.    Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004).            A

reassignment from a prestigious to a less desirable position is insufficient to establish an

adverse employment action. Id.; Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir.

2001). The City of Dallas concedes that Peterson lost some responsibilities when forced to

give up his national accounts as the Local Sales Manager. However, his job position

remained otherwise unchanged: he continued supervising the nine sales positions,

reporting to his same supervisor, and receiving the same base salary and four percent

override commission on his sales representatives’ gross revenue.


                                             5
      Peterson does not convincingly show that his loss of accounts rendered his

reassignment as the Local Sales Manager a demotion. More specifically, Peterson does not

show that he had fewer potential accounts or compensation opportunities in his new

position. Although Peterson alleges that his income decreased by thirty-five to forty

percent after assuming the Local Sales Manager Position, this large decrease was not a

result of his reassignment. He retained the same number of sales representatives to

generate revenue and received the same commission from their accounts. Peterson

concedes that he failed to fill all of his sales representative positions. Contrary to

Peterson’s assertion, the loss of the national accounts did not significantly reduce his

compensation opportunities: Peterson admits that eighty-four percent of WRR’s revenue

generating sales occur in local markets and that local accounts are more profitable than

national accounts.

      A “minor and indirect effect” on an employee’s compensation does not render a

lateral transfer a demotion. Pegram, 361 F.3d at 284 n.12. Although Peterson experienced

a significant decrease in compensation, he has not shown that his new position had more

than a “minor or indirect” impact.       Unlike in cases such as Stephens v. C.I.T.

Group/Equipment Fin., Inc., on which Peterson relies, WRR did not directly cut Peterson’s

salary. 955 F.2d 1023, 1027–28 (5th Cir. 1992). Even viewing all inferences in Peterson’s

favor, Peterson has not shown that focusing exclusively on local accounts amounts to a

demotion.

      After concluding that Peterson was not demoted, we easily find that he was not


                                           6
constructively discharged. Constructive discharge occurs if an “employer deliberately

makes an employee’s working conditions so intolerable that the employee is forced into

an involuntary resignation.” Jurgens v. EEOC, 903 F.2d 386, 390 (5th Cir. 1990) (citation

omitted). To determine whether a reasonable employee would feel compelled to resign,

we consider the following factors: (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 [or less experienced/qualified] supervisor; (6) badgering,

harassment, or humiliation by the employer calculated to encourage the employee’s

resignation; or (7) offers of early retirement [or continued employment on terms less

favorable than the employee's former status]. Brown v. Kinney Shoe Corp., 237 F.3d 556,

566 (5th Cir. 2001) (citations omitted and second alteration in original). Peterson contends

that the first three factors are present in this case. As previously discussed, we find that

Peterson’s reassignment did not amount to a demotion, his salary was not reduced, and

his job responsibilities were not significantly reduced. Unable to prove the existence of

any of the relevant factors, Peterson has not shown that he was constructively discharged.



                                   IV. CONCLUSION

       Because Peterson has not shown that he suffered an adverse employment action, the

district court’s opinion is AFFIRMED.




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