Petition for Writ of Certiorari — White v. Rush Health Systems, Inc.

\ F i

96 367s 3m

ogvct. oF ™ —

NO.

In the

Supreme Court of the United States

OCTOBER TERM, 1996

D. J. (BUD) WHITE,

Petitioner,

v.

RUSH HEALTH SYSTEMS, INC.

Respondent.

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Fifth District

PETITION FOR WRIT OF CERTIORARI

Clant M. Seay

P.O. Box 747

Kosciusko, MS 39090

(601) 289-1091

Counsel of Record

Michael J. Brown

5175 Galaxie Drive

Jackson, MS 39206

(601) 362-3878

Attorney for Petitioner

i

QUESTIONS PRESENTED

1, The U.S. Supreme Court should grant Petitioner’s

Writ of Certiorari in order to resolve the current conflicts that exist

among the Sth, 2nd, 10th, 9th, 4th, Ist, 7th, and 6th Court of

Appeal of the United States as represented by the vaying, differing

and conflicting standards for constructive discharge under Age

Discrimination in Employment Act, 29 U.S.C. 621 et seg. (ADEA)

presently being followed by those respective Courts; and to correct

the error by the Fifth Circuit Court of Appeals by failing to follow

its guidelines set out in Barrow v. New Orleans S. S. Ass'n. 10

F.3d 292, 297 (Sth Cir. 1994), in reaching its conclusion in the

subject case which upheld the erroneous conclusion of the U. S.

District Court. Petitioner was denied his day in Court before a jury

of his peers on the issue of his constructive discharge by his

employer due to his age.

2. Whether the Circuit Court fundamentally altered the

requirements of proof in a showing of constructive discharge in

holding that the petitioner failed to make out a prima facie case.

i

LIST OF PARTIES

The parties to the proceeding below were the petitioner DJ.

(Bud) White. The respondent before this Court is Rush Health

Systems, Inc.'

' Rush Health Systems, Inc. is the parent company of Rush Foundation

Hospital which was one of the original defendants in this matter which was dismissed

by a lower court ruling. The lower Court also dismissed as individual in this matter

the following parties: James C. McElroy, Jr., President of Rush Health Systems, Inc..;

Wallace Strickland, Administrator, Rush Foundation Hospital, Timothy H. Moore,

Personnel Director, Rush Foundation Hospital, Darrell Wildman, Chief Financial

Officer, Rush Foundation Hospital, Rick Beasley, Material Manager, Rush

Foundation Hospital.

iti

TABLE OF CONTENTS

Page

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1. The U.S. Supreme Court should grant Petitioner's Writ

of Certiorari in order to resolve the current conflicts that exist among the

Sth, 2nd, 10th, 9th, 4th, Ist, 7th, and 6th Court of Appeal of the United

States as represented by the vaying, differing and conflicting standards

for constructive discharge under Age Discrimination in Employment

Act, 29 U.S.C. 621 et seq. (ADEA) presently being followed by those

respective Courts; and to correct the error by the Fifth Circuit Court of

Appeals by failing to follow its guidelines set out in Barrow v. New

Orleans S. S. Ass’n, 10 F.3d 292, 297 (Sth Cir. 1994), in reaching its

conclusion in the subject case which upheld the erroneous conclusion of

the U. S. District Court. Petitioner was denied his day in Court before a

jury of his peers on the issue of his constructive discharge by his

employer Gut to Ris Age... 0... cee teeters eee eens 5

2. Whether the Circuit Court fundamentally altered the

requirements of proof in a showing of constructive discharge in holding

that the petitioncr failed to make out a prima facie case. ........... 10

RSE Cin Dee D Sel, wwe hw ek kee 8 12

iv

TABLE OF AUTHORITIES

Cases: Pages:

Acrey v, American Sheep Industry Ass'n, 981 F.2d 1569

TN Se EA a ah a epee 7

Alicea Rosado v. Garcia Santiago, 562 F.2d 114

en Sos eee cain .

Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292

a ee vawe nce i, iii, 5, 6, 10,11

Brooms v. regal Tube Co., 881 F.2d 412

eR FR RO ae Beings nye ints tian g ene 10

Calhoun v. Acme Cleveland Corp., 798 F.2d 559

CUA I oe cic pore t pad ae i crks wei wk ane .

Clowes v. Allegheny Valley Hospital, 991F. 2d 1159

Ne ce ae 9

Darnell v. Target Stores, 16 F.3d 174

COs ards sacred Baa Ak cos oa ls LR 9

Derr v. Gulf Oil Corp., 796 F.2d 340

CER es a re a a ch ha Th OE TR 7

Greenberg v. Union Camp Corp., 48 F.3d 22

Se SE es a Ao oa anes Oe od eee 8

Held v. Gulf Oil Co., 684 F.2d 427

GU Cae SOR ities tee ck vatouaa wis VE ene 10

Vv

Contents

Pages:

H v. In nion of 'r,

a ee Pe EE oie Sb a he we nskey eo 4s 0 ee KES 6

Martin v. Citibank, N.A., 762 F.2d 212

SSRN SR See yy Br ee 0 Se ae ene ae 9

Meyer v. Brown & Root Construction Co., 661 F.2d 369

Coa RED ek BS A cat aa ieaik CE Fd Paw Se co as ne we e's 9

R v. Western- m Li _Co.

er ee ab ek ws «4 bike ba bm 9

Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406

RR ee a ca ib eke ea eaas 7

Shealy v. Winston, 929 F.2d 1009 (4th. Cir.1991) ........... 8

Smith vy. World Ins. Co., 38 F.3d 1456

SRI GS, Cae il ea wii ay Cais Wats 6

Spence v. Maryland Cas. Co., 995 F.2d 1147

CO, a a aa ecb cud ve bebe ewk> 9

Steiner v. Showboat Operating Co., 25 F.3 1459

NN 7

Thomas v. Douglas, 877 F.2d 1428

ee eee Cet ee et Ce ele ees ba cum 8

Contents

Pages:

Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510

eee ee be eee Pao WG we pree ey yee 10

Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987).......... 10

STATUTES AND REGULATIONS

Pages:

TE REED 8 cos bso eek ease aeacuhaenecuce eel |

yo NT. : S ee err ee ee eres Pe nF La

29 U.S.C. § 623

]

STATEMENT OF JURISDICTION

The Fifth Circuit Court of Appeals entered its judgment on

May 9, 1996. App. 3a. This opinion was not published. The

Petitioner moved for rehearing en banc within the allowable time.

The Fifth Circuit Court of Appeals entered a order treating this

request as both a petition for panel rehearing and as a petition for

rehearing en banc; both were denied. App. la. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254 (1).

STATUTE INVOLVED

This case involves the Age Discrimination in Employment

Act, 29 U.S.C. § 621, et seq., which provides in pertinent parts as

follows:

§ 623. Prohibition of age discrimination

(a) Employer practices. It shall be unlawful for

an employer -

(1) 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;

(2) to limit, segregate, or classify his employees in

any way which would deprive or tend to deprive

any individual of employment opportunities or

otherwise adversely affect his status as an

employee, because of such individual’s age.

2

STATEMENT OF THE CASE

A. The Proceedings Below

This action was filed by petitioner, D.J. (Bud) White ("White"), in

the United States District Court for the Southern District of

Mississippi Eastern Division on June 27, 1994. The complaint

alleged that Mr. White was forced to retire (constructively

discharged) from his place of employment because of his age, in

violation of the Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. sections 621 et seq. ("ADEA"). App. 10a.

The petitioner further filed a Notice of Request and

Demand for a Jury Trial on July 5, 1994.

The defendants, Rush Health Systems, Inc., et al, ("Rush"),

respondent here, filed their motion for summary judgment on April

24, 1995

The District Court granted Rush's motion for summary

judgment with a Memorandum Opinion and Order on July 7, 1995.

App. 9a.

The District Court entered a Final Judgment in this matter

on July 14, 1995. App. 7a.

White filed his notice to appeal to United States Court of

Appeals for the Fifth Circuit on August 4, 1995. App. 5a.

Oral arguments on this case were heard before a panel of

judges from the Fifth Circuit on April 29, 1996.

The United States Court of Appeals for the Fifth Circuit

issued a written opinion affirming the District's Court opinion on

May 9, 1996. App. 3a.

The United States Court of Appeals for the Fifth Circuit

denied petitioners request on June 5, 1996 for the matter to be

reheard on a suggestion for rehearing en banc. App. la. This

petition for a writ of certiorari follows.

B. Statement of the Facts

The Petitioner was sixty-five (65) years when he was forced

into retirement by the actions of the respondent. He had been

employed at Rush Foundation Hospital from 1965 and at the time

of his forced retirement his job title was called purchasing manager.

During the time in which the petitioner's responsibilities

were being taken away, a so called new position of materials

manager was created by respondent's management team. This

position was filed by Rick Beasley age thirty-seven (37) years old.

App. 10a.

After Beasley took over petitioner's responsibilities as a

supervisor, he immediately started to take all of petitioner's work

responsibilities away.

Cosondra Moffett stated in her depositional testimony

"That Mr. Beasley offered me and Monica Vance the positions of

Office Manager and Warehouse Manager in effect to completely

phase out and replace Mr. D.J. (Bud) White at R.F.H.. Mr. Beasley

would retain the position and responsibilities of being the

purchasing agent for R.F.H.."

Monica Vance stated in her depositional testimony that

Rick Beasley had no additional duties or job functions then the

petitioner. Mr. Beasley had taken over the petitioner's job.

The petitioner was also denied computer traiming

on the new computer system that was being installed into his

department. Rush employee Cosondra Moffett stated in her

testimony that:

{tlo my knowledge Mr. White was never offered

computer training on the new computer system that

was being installed in the purchasing department.

Myself and other office employees in the

purchasing department at R.F.H. were offered

computer training. Mr. White came to me. I

showed him how to work it. ... The Owen people

a Te eee

4

who installed the new computer system at the

hospital, from the start treated Mr. White with no

respect and treated him like he was a nobody.

Further Rush employee Kristi Lanterman stated in her

depositional testimony:

[to my knowledge Mr. White was never offered

computer training on the new computer system that

was being installed in the purchasing department.

Ann Murphy from Owen stated that they were not

going to waste time trying to teach him how to use

the new system. She made the statement that Bud

would be leaving soon.

The petitioner had no choice in the matter involving his job.

He tried to hold onto it as long as possible, however, the facts are he

was being out do to his age.

The petitioner went to the EEOC office in Jackson,

Mississippi on January 17, 1994 and filed his affidavit alleging Age

Discrimination in violation of ADEA. The EEOC issued D.J. White

a right to sue letter on March 3, 1994. The petitioner filed his

Complaint on June 27, 1994.

5

REASONS FOR GRANTING THE WRIT

1. The U.S. Supreme Court should grant

Petitioner’s Writ of Certiorari in order to resolve the current

conflicts that exist among the Sth, 8th, 2nd, 10th, 9th, 4th, 1st,

7th, and 6th Courts of Appeal of the United States as

represented by the vaying, differing and conflicting standards

for constructive discharge under Age Discrimination in

Employment Act, 29 U.S.C. 621 et seq. (ADEA) presently being

followed by those respective Courts; and to correct the error by

the Fifth Circuit Court of Appeals by failing to follow its

guidelines set out in Barrow vy. New Orleans S. S. Ass’n. 10 F.3d

292, 297 (Sth Cir. 1994), in reaching its conclusion in the subject

case which upheld the erroneous conclusion of the U. S. District

Court. As a result, the Petitioner was denied his day in Court

before a jury of his peers on the issue of his constructive

discharge by his employer due to his age.

This Petition for Writ of Certiorari shows the respective

Circuit Courts of Appeal all differ in the definition of what is or is

not constructive discharge under ADEA with the exception of Fifth

Circuit Court of Appeals. Throughout the other Circuits of the

United States there is no standard to determine what is or is not

constructive discharge other than the “reasonable persons

standard”, which is interpreted differently by the various Circuit

Courts of Appeal.

The Fifth Circuit Court of Appeals in Barrow vy. New

Orleans S. S. Ass'n. 10 F.3d 292, 297 (Sth Cir. 1994), set out

seven factors to be considered by a Court in determining whether or

not a prima facie case re constructive discharge is established.

Then the Fifth Circuit Court of Appeals in the present case

failed to follow its criteria for constructive discharge is set out in the

Barrow case. The seven factors to be considered by a Court in

determining whether a prima facie case of constructive discharge

6

exists under the ADEA, which factors are to be considered singly or

in combinations:

(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 on terms that would make

the employee worse off whether the offer was accepted or not.

The Fifth Circuit Court of Appeals did not follow its’ own

criteria. As a result, the Fifth Circuit Court of Appeals is not in

harmony with itself and a conflict exists that only this Court can

address.

There is no standard to decide what is and what is not

constructive discharge among the other circuit courts. The so called

standard is the “reasonable persons standard".

However, this "reasonable person standard" varies on what

circuit your suit arises.

The Eighth Circuit Court of Appeals stated in Smith v.

a rmeaag os 38 F.3d 1456, 1461 - Cir. 1994), citing

ationa n_o' ting Eng'r, 3 F.3d 281,

285 (8th Cir. 1993):

[T]he plaintiff must also show that the

employer created the intolerable condition intending

to force the plaintiff to quit. Id. The plaintiff can

satisfy the intent requirement by demonstrating that

he or she quit as “a reasonable foreseeable

consequence of {the} employer{‘s} discriminatory

actions.” Hukkanen vy. International Union _of

Operating Eng’r, 3 F.3d 281, 185 (8th Cir. 1993).

7

Therefore under the Eighth Circuit Court's interpretation, it

would be the "reasonably foreseeable consequence" standard.

The Tenth Circuit Court of Appeals set it's standard to

prove constructive discharge in the case of Derr y. Gulf Oil Corp.,

796 F.2d 340, 344 (10th Cir. 1986), cited in Acrey v. American

Sheep Industry Ass'n, 981 F.2d 1569, 1573, 1574 (10th Cir. 1992)

[W]e have defined the standard for constructive

discharge as whether the employer’s illegal

discriminatory acts fostered a climate in the

workplace that would compel a reasonable person

to resign. Derr v. Gulf Oil Corp., 796 F.2d 340,

344 (10th Cir. 1986).

The Court in Acrey at 1574, further stated that although the

plaintiff in this case had stated that her resignation was tendered

because "she was ‘too tired’ to fight", she had “presented sufficient

evidence to support the jury's determination that she was

constructively discharged."

Therefore under the Tenth Circuit Court of Appeals the

standard would be a modest "reasonable person standard".

The Ninth Circuit Court of Appeals restated its' standard

for constructive discharged in Schnidrig v, Columbia Machine, Inc.,

80 F.3d 1406, 1411 (9th Cir.1996), citing Steiner vy. Showboat

Operating Co., 25 F.3 1459, 1465 (9th Cir. 1994), (quoting Thomas

y. Douglas, 877 F.2d 1428, 1434 (9th Cir.1989)), when the Court

stated:

[Tjo establish a claim for constructive discharge,

Schnidrig “must show there are triable issues of

fact as to whether ‘a reasonable person in [his]

position would have felt that [he] was forced to quit

because of intolerable and discriminatory

conditions.”” Steiner v. Showboat Operating Co.,

25 F.3d 1459, 1465 (9th Cir. 1994), (quoting

Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir.

1989 )).

Under the Ninth Circuit the plaintiff "must show triable

issues of fact" and that the conditions must be both intolerable and

discriminatory. Therefore this Circuit Court is not in harmony with

the other circuit courts.

The Fourth Circuit Court of Appeals held in Shealy v.

Winston, 929 F.2d 1009, 1013 (4th. Cir.1991), that:

in order to establish a constructive discharge, the

employee must show the deliberateness of the

employer's actions and the intolerability of the

Therefore the Fourth Circuit again has a standard not

shared by the other Circuits and there exists a need by this Court to

deliver a unified standard on what constitutes "Constructive

Discharge”.

The First Circuit Court of Appeals restated its constructive

discharge standard in Greenberg v. Union Camp Corp., 48 F.3d 22,

27 (ist Cir. 1995) when it stated:

to establish a claim of constructive discharge, the

evidence must support a finding 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." Calhoun v. Acme Cleveland Corp., 798

F.2d 559, 561 (lst Cir.1986) (quoting Alicea

Rosado v. Garcia Santiago, 562 F.2d 114, 119 (Ist

Cir. 1977)).

The standard for the First Circuit is the "reasonable person

standard"; but what constitutes a reasonable person in connection

with constructive discharge when there are no guideline factors to

9

follow. The factors for which the reasonable person should be

guided, needs to be delivered by this Court.

The Second Circuit Court of Appeals stated in Spence v.

Maryland Cas. Co., 995 F.2d 1147, 1156 (2nd. Cir. 1993) that:

a constructive discharge cannot be proven merely

by evidence that an employee disagreed with the

employer's criticisms of the quality of his work, or

did not receive a raise, or preferred not to continue

working for that employer. Nor is the test merely

eee eee ee were

difficult or unpleasant. See, ¢.g., id.; Clowes v.

Allegheny Valley Hospital, 991F. 2d 1159, 1162

(3rd Cir.1993); cf.Martin vy. Citibank, N.A., 762

F.2d 212, 221 (2nd Cir. 1985).

Further the Court in Spence at 1156, stated that:

[A] constructive discharge may be found on the basis

of evidence that an employer deliberately sought to

place an employee in a position that jeopardized his or

her health. See, eg. Meyer _v. Brown & Root

Construction Co. 661 F.2d 369, 371-72 (Sth

Cir.1981).

Therefore the Second Circuit has established certain factors

that allow for the trier of fact to find for a plaintiff in a case of

constructive discharge. However its overal! standard to determine what

constitutes constructive discharge is still rather vague at best.

The Seventh Circuit Court of Appeals has restated its standard

for constructive discharge in the case of Darnell v. Target Stores, 16

F.3d 174, 177 (7th Cir.1994) where the Court stated that:

[D]emonstrating constructive discharge requires a

showing that a “reasonable employee would have felt

compelled to resign under the circumstances of the

10

F.3d 668, 677 (7th Cir.1993) (citing Brooms v. regal

Tube Co., 881 F.2d 412, 423 (7th Cir. 1988).

The Sixth Circuit Court of Appeals stated in Wilson _v.

Firestone Tire & Rubber Co., 932 F.2d 510, 515 (6th Cir.1991) what

its standard is for the proof of constructive discharge as being:

"so difficult or unpleasant that areasonable person in

the employee's shoes would have felt compelled to

resign". Yates y. Avco Corp., 819 F.2d 630, 636-37

(6th Cir.1987); Held v. Gulf Oil Co., 684 F.2d 427,

432 (6th Cir. 1982).

The Seventh and Sixth Circuit again places the trier of fact in a

most difficult position on judging, without the guidance of factors, on

what constitutes a standard to determine what is constructive discharge.

The Supreme Court should grant this Petition to reconcile a

serious circuit conflict, and to provide needed coherence to an unsettled

and vitally important area of the federal age discrimination law.

2. Whether the Circuit Court fundamentally altered the

requirements of proof in a showing of constructive discharge in

holding that the petitioner failed to make out a prima facie case.

The Petitioner made out a prima facie case of Age

constructively discharged under the standards and proof established by

the Fifth Circuit Court of Appeals in Barrow v. New Orleans S.S.

Ass'n, 10 F.3d 292, 297 (Sth Cir. 1994).

The Fifth Circuit Court of Appeals ruled in the Barrow case

that seven factors should be used to consider whether a reasonable

employee would feel compelled to resign [retire]. These factors are to be

used singly or in combinations:

(1) demotion; (2) reduction in salary; (3) reduction in

job responsibilities; (4) reassignment to menial or

I]

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 on terms that would make the employee

worse off whether the offer was accepted or not.

‘The Petitioner showed that he could meet five of the seven

factors with regards to the proof required under the Barrow standard.

However the Circuit Court refused to follow the Barrow standard in a

showing of what constitutes constructive discharge under the reasonable

person standard.

Moreover, by the Circuit Court failing to follow the seven

factors of Barrow or trying to distinguish the present case with Barrow,

the Court has not maintained uniformity of its decisions.

Therefore the Fifth Circuit Court of Appeals is not in harmony

with itself and a conflict exists that only this Court can address.

Petitioner was denied his day in Court before a jury of his peers on the

issue of constructive discharge by his employer due to his age.

12

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted and the decision of lower courts should be reversed.

Respectfully submitted,

Co ate

Clant M. Seay

P.O. Box 747

Kosciusko, MS 39090

(601) 289-1091

Counsel of Record

Michael J. Brown

5175 Galaxie Drive

Jackson, MS 39206

(601) 362-3878

Attorney for Petitioner

la

APPENDIX A- OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT DATED

JUNE §, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 95-60487

D. J. (BUD) WHITE

PLAINTIFF - APPELLANT

7.

RUSH HEALTH SYSTEMS, INC., and its subsidiary; RUSH

FOUNDATION HOSPITAL; JAMES C. MCELROY, JR.,

President of Rush Health Systems, Inc; WALLACE

STRICKLAND, Administrator, Rush Foundation Hospital;

TIMOTHY H. MOORE, Personnel Director, Rush Foundation

Hospital; DARRELL WILIIMAN, Chief Financial Officer, Rush

Foundation Hospital; KiCx BEASLEY, Material Manager, Rush

Foundation Hospital

DEFENDANTS - APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,

JACKSON

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 05/09/96, 5 Cir., ; F.3d )

(June 05, 1996)

Before Circuit Judges: :

GARWOOD, HIGGINGBOTHAM and BENAVIDES

PER CURIAM:

Treating the Suggestion for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. No member of the panel nor judge in regular active

service of the court having requested that the court be polled on

Rehearing En Banc (FRAP and Local Rule 35), the Suggestion for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

Clerk

3a

APPENDIX B- OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT DATED

MAY 9, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 95-60487

D. J. (BUD) WHITE

APPELLANT

ws

RUSH HEALTH SYSTEMS, INC., and its subsidiary; RUSH

FOUNDATION HOSPITAL; JAMES C. MCELROY, JR.,

President of Rush Health Systems, Inc; WALLACE

STRICKLAND, Administrator, Rush Foundation Hospital;

TIMOTHY H. MOORE, Personnel Director, Rush Foundation

Hospital; DARRELL WILDMAN, Chief Financial Officer, Rush

Foundation Hospital; RICK BEASLEY, Material Manager, Rush

Foundation Hospital

APPELLEES

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

(4:94-CV-62-LN)

Before Circuit Judges:

GARWOOD, HIGGINGBOTHAM and BENAVIDES

4a

PER CURIAM:”

In this age discrimination case, appellant, D. J. “Bud”

White appeals from a summary judgment granted in favor of

appellee Rush Health Systems, Inc. (“Rush”) on the grounds that

White failed to make a prima facie case of constructive discharge.

We affirm.

White’s lawsuit stems from events surrounding the

computerization of Rush’s purchasing department where White had

been the purchasing agent. Following the decision to automate

purchasing procedures, Rick Beasley, a thirty-seven year old

employee, was assigned to head the department. White retained his

title, but Beasley had the responsibility for automation. As a result

of the computerization, many of White’s old duties became

obsolete. White asserts that Beasley took over or reassigned all of

White’s job functions leaving him with essentially nothing to do.

Despite the transfer of job responsibilities, it is undisputed that

White suffered no decrease in pay, benefits, or hours of

employment. His job title did not change. He was never asked to

resign or retire. On March 15, 1994, White met with the personnel

director who explained to White his job duties post-

computerization. Nonetheless, two days later, White, who had been

an employee of Rush for twenty-eight years, resigned at the age of

sixty-five.

White then sued Rush' alleging that he was constructively

discharged on account of his age in violation of the Age

Discrimination in Employment Act (“ADEA”). Rush moved for

summary judgment on the basis that White failed to make a prima

Pursuant to Local Rule 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 Local Rule 47.5.4

Rush also named several individual employees in the lawsuit. The

district court dismissed the claim against the individual employees because they

were not “employees” under the ADEA. White does not challenge this on

appeal.

5a

facie case of constructive discharge. The district court agreed; this

appeal ensued.

We review a summary judgment under well-established

standards. Blakeny v, Lomas Info Sys., Inc., 65 F.3d 482, 484 (Sth

Cir. 1995); see Sterling Property Management, Inc. y. Texas

Commerce Bank, Nat’! Ass’n, 32 F.3d 964, 966 (5th Cir. 1994).

The district court properly denied White’s ADEA claim

because White failed to make a prima facie showing of constructive

discharge. To establish a prima facie case of age discrimination,

the plaintiff must initially establish that he was discharged. Rhodes

vy. Guiberson Oil Tools, 75 F.3d 989, 992 (Sth Cir. 1996) (en banc).

Because White was not actually discharged, he must show

constructive discharge. Constructive discharge occurs when the

working conditions are so difficult or unpleasant that a reasonable

person in the employee’s shoes would feel compelled to retire.

McCann vy. Litton Sys., Inc., 986 F.2d 946, 951 (Sth Cir. 1993).

White cannot make a prima facie showing of constructive

discharge on the summary judgment evidence presented. Accepting

White's testimony as true, at most, White can only demonstrate that

his job functions were given to other employees.” It is undisputed

that he retained his job title, salary, benefits, and hours.

Consequently, none of the usual inducia of a constructive discharge

are present. See McKethan yv. Texas Farm Bureau, 996 F.2d 734,

741 (Sth Cir. 1993) (describing demotion, performance of

inconsistent or more onerous duties, and reduced pay as usual

factors surrounding constructive discharge), cert. denied, 114 S. Ct.

694 (1994). Being retained in a newly-created position “without a

description and little in the way of job duties” does not reach the

level of constructive discharge. See McCann, 986 F.2d at 949,

951-2; see also Jett v. Dallas Indep. Sch. Dist., 798 F.2d 748, 755

(Sth Cir. 1986) (demotion of high school athletic director to a non-

Rush hotly contests this issue contending that White still retained

significant job functions.

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coaching position did not establish constructive discharge), aff'd in

part_and rev'd in part on other grounds, 491 U.S. 701 (1989);

Jurgens vy. EEOC, 903 F.2d 386, 392 (Sth Cir. 1990) (demotion,

plus a pay-cut, and loss of supervisory duties did not amount to

constructive discharge).

White also fails to demonstrate any additional aggravating

factors to implicate constructive discharge. He was not forced to

train his new supervisor. There is no summary judgment evidence

that White was harassed about his retirement plans. Likewise, there

is nO summary judgment evidence that White was humiliated by his

supervisors.’ Furthermore, White did not pursue internal grievance

procedures that we have counseled is necessary before resignation

for constructive discharge. _See McKethan, 996 F.2d at 741;

Ugalde v. W. A. McKenzie Asphalt Co., 990 F.2d 239, 243 (Sth

Cir. 1993). Finally, we note that when asked in his deposition why

he retired White did not articulate a forced a constructive discharge,

but instead stated that he anticipated someone would eventually “get

up enough nerve to tell me to go home permanently” and indicated

his belief that once he sued the company he could not continue to

work there. Under the particular circumstances, no reasonable

employee would have felt compelled to resign. See Barrow v. New

Orleans Steamship Ass'n, 10 F.3d 292, 297 (Sth Cir. 1994).

The judgment of the district court is AFFIRMED.

. White’s testimony is that he resigned because he had nothing to do.

While one co-worker’s affidavit includes a conclusory statement that Beasley

“when possible, tried’ to put down and humiliate Mr. White,” there is no

summary judgment evidence that this was ever done in White’s presence. As

such, White could not have been influenced to resign by this alleged humiliation.

See McKethan, 996 F.2d at 741 (holding that derogatory comments made at

awards banquet in front of employee insufficient to show constructive

discharge).

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APPENDIX C - FINAL JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN OF

MISSISSIPPI EASTERN DIVISION DATED JULY 17, 1995

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN OF MISSISSIPPI

EASTERN DIVISION

Civil Action No. 4:94-CV-62 (L) (N)

D. J. (BUD) WHITE,

Plaintiff,

v.

RUSH HEALTH SYSTEMS, INC..,

AND ITS SUBSIDIARY; RUSH

FOUNDATION HOSPITAL, ET AL

Defendant.

FINAL JUDGMENT

This cause came on for hearing on the motion of Defendant

for summary judgment. After consideration of the motion, evidence

offered in support of the motion, and the memoranda of the parties,

the Court finds that the motion is well taken and should be granted.

The Memorandum Opinion and Order of this Court filed July 7,

1995, and the Findings of Fact and Conclusions of Law included

therein are incorporated herein by reference. For the reasons

assigned in that Memorandum Opinion and Order, the Court

concludes that judgment should be entered in favor of the Defendant

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and against the Plaintiff and that the Defendant should be awarded

its costs.

IT IS THEREFORE, ORDERED AND ADJUDGED that

the complaint be, and it is hereby DISMISSED WITH

PREJUDICE in accordance with this Court’s Memorandum

Opinion and Order at the cost of the Plaintiff.

IT IS FURTHER ORDERED AND ADJUDGED that the

Defendant is entitled to recover its taxable costs in this action upon

filing a Bill of Costs in the time and manner prescribed.

SO ORDERED AND ADJUDGED, THIS THE 14th day

of July, 1995.

‘Si TOMS. LEE

UNITED STATES DISTRICT JUDGE

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APPENDIX D - MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF MISSISSIPPI FILED

JULY 7, 1996

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

CIVIL ACTION NO. 4:94CV62(L)(N)

D. J. “BUD” WHITE,

Plaintiff,

v.

RUSH HEALTH SYSTEMS, INC..

Defendant.

MEMORANDUM OPINION AND ORDER

This cause is before the court on the summary judgment

motion of all defendants. The court, having considered the motion,

response, briefs and exhibits, concludes that defendants’ motion

should be granted.‘

Plaintiff D. J. “Bud” White was employed by defendant

Rush Foundation Hospital, a subsidiary of defendant Rush Health

Systems, Inc. (together “Rush”), for approximately twenty-eight

: Defendants have also moved to strike portions of affidavits filed by

plaintiff in his response to their motion for summary judgment. Because the

court will grant defendants’ motion for summary judgment, the motion to strike

is rendered moot.

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years. On March 7, 1994, at the age of sixty-five, he tendered his

resignation to Rush and soon thereafter, upon receiving a right-to-

sue letter from the Equal Employment Opportunity Commission

(EEOC), filed this lawsuit alleging that he had been constructively

discharged on account of his age, in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

Plaintiff's charge of age discrimination stems from a series of

events associated with the computerization of Rush’s purchasing

ultimately culminated in his constructive discharge.

Plaintiff was the purchasing agent at the hospital for a

number of years, when, in the early 1990s, a determination was

made to upgrade and automate purchasing procedures at the

hospital. To facilitate the conversion, Rick Beasley, a thirty-seven

year old, was transferred in to head the department. White retained

the title of purchasing agent, but Beasley in fact took charge of the

process of automating the department, and he continued to run the

department once the automated systems were in place.° According

to plaintiff, by September 1993, Beasley, in the newly-created

position of materials manager for the purchasing department, had

either taken over or otherwise reassigned all of the plaintiff's

important job functions. Whereas plaintiff had once been

responsible for supervising the department’s employees, talking to

sales representatives, negotiating prices and working with other

department heads and physicians, Beasley assumed these duties.

Additionally, Beasley placed Kristi Lanterman, hired after the

computerized system was implemented, in charge of distributing

supplies from inventory, a job function previously performed by

plaintiff, Cossandra Moffett, who had been under plaintiff's

: Defendants have presented extensive evidence that White was

uncooperative and even openly hostile to the process of computerizing the

purchasing department White disputes this claim and says that while he was

not opposed to computerization, he did not approve of the particular system

being installed.

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supervision, took over plaintiff's duty of approving invoices, and

Monica Vance, another new employee, began ordering, accounting

and maintaining inventory, other functions that had been performed

by plaintiff. Plaintiff and Vance shared an office and desk which

plaintiff had previously had to himself. All of these changes left

plaintiff with very little work or responsibility. Plaintiff testified, “I

was left with nothing to do but opening the mail. Then it was given

to Moffett also.” Nevertheless, plaintiff also testified that he

suffered no diminution in pay, benefits or hours of employment; nor

is alleged to have usurped all of White’s authority and

responsibility.° Finally, in March 1994, plaintiff resigned. He

claims in this lawsuit that defendants’ actions forced him into

retirement, or in other words, that he was constructively discharged.

And he claims that this occurred because of his age.

Initially, the court observes that in addition to Rush,

plaintiff has named as defendants a number of his fellow Rush

employees, most of whom occupied superior or supervisory

positions,’ who, along with Rush, are alleged to have caused, for

. For the purposes of this motion, the court has considered as true facts

as presented by the non-moving party, however, the court notes that defendant

has offered affidavit testimony that plaintiff retained significant duties in the

purchasing department, and that as late as March 15, 1994, two days before

White tendered his resignation, Timothy Moore, the hospital’s personnel

director, and Darrell Wildman, the Chief Financial Officer, met with White to

assure him that, although the process of automation meant some functions would

be performed differently, his responsibilities as purchasing agent would remain

as they had been in the past.

He alleges that these defendants, like Rush, discriminated against him

because of his age in violation of the ADEA. As to the individual defendants,

plaintiff does not allege that they committed any torts against him. Rather, he

seems to have included them in the category of his “employer,” alleging that he

was “an employee of the Defendants as the term ‘Defendants’ is defined in the

Age Discrimination in Employment Act, 29 U.S.C. 630(f), “which defines

“employee.” The court is unaware of any definition of “defendant” in the act.

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discriminatory reasons, plaintiff's forced retirement. It is clear in

this circuit that individual employees are not subject to suit under

Title VII, which defines “employer” to mean “a person engaged in

an industry affecting commerce who has fifteen or more employees.

. . and any agent of such a person... .” 42 U.S. C. § 20000e(b).

Grant y. Lone Star Co., 21 F.3d 649 (Sth Cir.), cert. denied, 115 S.

Ct. 574 (1994). Rather, the phrase “agents of such a person” is

included in the definition so that the actual employers may be held

liable through respondeat superior for the acts of their agents.

Miller vy. Maxwell’s Int’l Inc., 991 F.2d 583, 584 (9th Cir. 1993),

cert. denied, 114 S. Ct. 1049 (1994). By analogy, this proposition

holds true for the ADEA as well, which defines “employer”

similarly as “a person engaged in an industry affecting commerce

who has twenty or more employees. .. . The term also means (1)

any agent of such a person... .” 29 U.S.C. § 630(b).*

Accordingly, individual employees of Rush, named by plaintiff, are

not employers under the ADEA and for that reason, are due to be

dismissed. The court’s further conclusion, applicable to all

defendants, that plaintiff cannot establish the elements of his claim,

also compels the conclusion that plaintiff's allegations as to the

nearly total elimination of his job responsibilities and duties,

plaintiff still cannot prevail since he cannot prove he was

constructively discharged.

The court construes this statement by plaintiff as an allegation that all

defendants were employers within the meaning of 29 U.S.C. § 630 (b).

Moreover, the Fifth Circuit utilizes the same “hybrid economic

realities/common law right of control test” to determine the existence of an

employment relatioriship under Title VII and the ADEA, see Barrow _v. New

Orleans S. S. Ass’n, 932 F.2d 473 (Sth Cir. 1991), and the standards governing

the parties’ burdens and the order of proof under both acts are analogous, see

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 n. 7 (Sth Cir. 1993). Thus

resolution of the issue of individual employees’ exposure to suit under the

ADEA should likewise be guided by Title VII principals.

13a

To establish a prima facie case of age discrimination, the

ADEA plaintiff must demonstrate (1) that he was actually or

constructively discharged; (2) that he was qualified for the position;

(3) that he was within the protected class at the time of discharge;

(4) and that he was either (a) replaced by someone outside the

protected class, (b) replaced by someone younger, or (c) otherwise

discharged because of his age. See Bodenheimer _v. PPG Indus.

Inc., 5 F.3d 955, 957 (Sth Cir. 1993); McCann y, Litton Sys., Inc.,

5 F.2d 946, 950 (Sth Cir. 1993). Here, it is undisputed that White

was not actually discharged, but rather resigned; therefore, he must

prove he was constructively discharged. The Fifth Circuit has said

that “[c]Jonstructive discharge occurs when ‘the working conditions

are so difficult or unpleasant that a reasonable person in the

employee’s shoes would feel compelled to [retire].”” McCann, 986

F.2d at 951 (quoting Bourque y. Powell Electrical Mfg. Co., 617

F.2d 61, 65 (Sth Cir. 1980)). The inquiry is not whether the

employee in fact felt compelled to resign, but whether an objectively

reasonable person would have been compelled to resign. Id.

In support of his constructive discharge claim, plaintiff has

presented deposition testimony and affidavits of witnesses who state

that Rick Beasley excluded him from department meetings and often

stated to others--but not to the plaintiff--that he wished plaintiff

would “go on and go home”; in other words, that he wished White

would retire. However, even accepting as true that Beasley was

“adamant” about plaintiff's retirement, but noting the absence of

evidence that Beasley ever said anything in that vein to plaintiff

himself, the court concludes this evidence is insufficient to support a

finding of constructive discharge.

The burden to prove constructive discharge is a heavy one.

The Fifth Circuit has considered numerous cases in which working

conditions were far less than pleasant, but in which the court has

nevertheless concluded that the correct path would have been for a

would-be plaintiff to remain in his job and seek remedies in court,

especially given the statutory protections against retaliatory

l4a

discharge. See e¢.g., Vaughn v. Pool Offshore Co., 683 F.2d 922

(5th Cir. 1982) (racially offensive work environment and extended

working hours not constructive discharge); Jett v. Dallas Indep.

School Dist., 798 F.2d 748 (Sth Cir. 1986), modified on other

grounds, 109 S. Ct. 2702 (1989) (demotion from head football

coach at one high school to freshman coach at another not

constructive discharge). In this regard, the parallels between this

case and McCann y. Litton Systems, Inc., 986 F.2d 946 (Sth Cir.

1993), are worth nothing. In McCann, the plaintiff, as White here,

alleged that his employer forced him into retirement. McCann was

sixty-seven years old and had been employed as an engineer by

Litton for sixteen years. A thirty-three-year-old employee was

transferred into a position very similar to McCann’s. McCann

testified that he intended to work until about age seventy, but that

his employers “hounded” him with questions about his retirement

plans and placed him in a new position with no job description and

very few duties. Later, McCann was given the option, as part of a

company-wide reduction in force, of either retiring or transferring to

a new position with decreased pay under a much younger man and

being “deprived of his secretary and subordinates.” He chose to

retire and filed suit charging constructive discharge. The Fifth

Circuit held that these events, culminating in the prospect of a cut in

pay and loss of supervisory responsibilities, did not amount to

constructive discharge. Id. at 952. The court here likewise

concludes that the facts shown by plaintiff will not support his

claim.

. Because plaintiff has not carried the burden of his prima facie case, the

arguments of the parties regarding the issue of the availability of punitive

damages under the ADEA are moot and will not be addressed.

|

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For the foregoing reasons, the defendants’ motion for

summary is granted. A separate judgment will be entered in

accordance with Rule 58 of the Federal Rules of Civil Procedure.

SO ORDERED this the 7th day of July, 1995.

/S/ TOM S. LEE

UNITED STATES DISTRICT JUDGE