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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1007

## Text

\ 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.

lla

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.

12a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1415%3A1. Public record. Not legal advice.