IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 01-21233

                         Summary Calendar
                       ____________________


     BROOKE A. JACKSON, M.D.

                                    Plaintiff-Appellant

     v.



     THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER; ET AL

                                    Defendants

     THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER

                                    Defendant-Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           No. H-00-0531
_________________________________________________________________
                         October 23, 2002

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:*




     *
        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that this opinion should not be published and is not precedent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.
     Plaintiff-appellant Brooke A. Jackson, M.D., appeals from

the district court’s decision granting summary judgment to

defendant-appellee The University of Texas M.D. Anderson Cancer

Center on Dr. Jackson’s claims for constructive discharge and

disparate treatment in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2002e (2000).      For the

reasons set forth below, we AFFIRM the district court’s grant of

summary judgment to M.D. Anderson.



              I.    FACTUAL AND PROCEDURAL BACKGROUND

     From July 1998 to October 1, 1999, Dr. Brooke A. Jackson, an

African-American female, was employed by The University of Texas

M.D. Anderson Cancer Center (“M.D. Anderson”), a branch of the

University of Texas system.   Dr. Jackson is qualified to perform

a specialized surgical technique for removal of skin cancers

known as Mohs Micrographic Surgery (“Mohs”).   Dr. Madeline Duvic

was Chief of the Dermatology Section of M.D. Anderson and also

Dr. Jackson’s supervisor.   Dr. Robert F. Gagel was Chairman of

the Department of Internal Medicine of Specialities of M.D.

Anderson and Dr. Duvic’s supervisor.

     Dr. Jackson took part in an interview designed to select who

would start up and lead the Mohs Unit at M.D. Anderson.     Dr.

Duvic was authorized to oversee the interviewing of candidates

for the position.   In the Spring of 1998, Dr. Duvic narrowed the

field of candidates to direct the Mohs surgery unit to Dr.

                                  2
Jackson and Dr. Michelle Algarin.     Dr. Jackson was ultimately

offered the position.   During the interview process, Drs. Duvic

and Jackson discussed the terms of Dr. Jackson’s potential

employment, including the possibility of Dr. Jackson developing

the Mohs Surgery Unit and serving as its director.     Dr. Jackson

contends that Dr. Duvic stated during their meeting that her

salary would be $160,000 per annum and the appointment would

serve as a tenure-track position.     Dr. Jackson reports that Dr.

Duvic did not object to Dr. Jackson’s interest in pursuing a

private cosmetic surgery practice outside of M.D. Anderson.     In

response, Dr. Duvic maintains that all of these topics were only

discussed in general terms during this interview.     Dr. Duvic also

specifies that she did not have final authority to grant any of

the requests and that she did not make any guarantees to Dr.

Jackson regarding the requests.

     On July 23, 1998, shortly after Dr. Jackson began her

employment with M.D. Anderson, she was given a formal offer

letter stating the terms and conditions of her employment (“Offer

Letter”).   The Offer Letter indicated that her position at M.D.

Anderson was on an ad interim basis, that her salary was to be

$150,000 per annum, that she was to be given a one-year

nonrenewable term of employment, and that she would receive a

non-tenured clinical appointment.     Soon after her receipt of the

Offer Letter, Dr. Jackson realized that she would be unable to

pursue a cosmetic surgery practice independent of M.D. Anderson

                                  3
under the terms of the Physicians Referral Service (“PRS”)

agreement, which generally prohibits physicians from taking fees

for services outside of their employment contract.

     Dr. Duvic eventually agreed to redact the “nonrenewable”

language from the Offer Letter, telling Dr. Jackson that she had

no plans to “get rid” of her.   Dr. Duvic also stated that she

would attempt to have Dr. Jackson’s salary raised to $160,000 per

annum but that the administrators of the plastic surgery and head

and neck departments had objected to a Mohs surgeon’s salary

being at that amount.   Troubled by these alleged changes of

workplace conditions, on September 10, 1999, Dr. Jackson resigned

from her employment at M.D. Anderson, effective October 11.

     On February 18, 2000, Dr. Jackson filed suit, naming M.D.

Anderson, Dr. Duvic, and Dr. Gagel as defendants.      Her lawsuit

alleged breach of contract, constructive discharge in violation

of Title VII and general workplace discrimination in violation of

Title VII.   It was not until July 14, 2000, that Dr. Jackson

filed her charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”).       The EEOC issued Dr. Jackson a

right to sue notice on January 21, 2001.      In the meantime, the

Defendants filed motions to dismiss and for summary judgment.        On

April 12, 2001, the district court dismissed all of Dr. Jackson’s

claims except for those arising under Title VII.      On June 4,

2001, Jackson filed a Third Amended Complaint specifying her



                                   4
claims, thereafter alleging race-based disparate treatment under

Title VII.

     On July 30, 2001, M.D. Anderson and the other named

defendants moved for summary judgment as to Dr. Jackson’s Title

VII claims, arguing that: (1) Dr. Jackson had insufficient

evidence to support her claims; (2) M.D. Anderson’s conduct

toward Dr. Jackson was based on legitimate, nondiscriminatory

reasons; (3) M.D. Anderson treated Dr. Jackson as it would have

treated any other similarly situated Caucasian or male; and (4)

Dr. Jackson did not timely file her charge of discrimination with

the EEOC.

     In its Memorandum and Order of October 30, 2001, the

district court awarded summary judgment in favor of M.D.

Anderson, finding that Dr. Jackson had failed to raise a genuine

issue of material fact on any aspect of her claim for disparate

treatment.   The court further concluded that Dr. Jackson had

failed to timely file her charge of discrimination on all claims

save for her constructive discharge claim.   In the interests of

justice, the court also raised, sua sponte, the issue of whether

Dr. Jackson had endured a continuing violation, and deemed this

possible cause of action without merit.   As to her claim for

constructive discharge, the court dismissed that claim with

prejudice, finding that Dr. Jackson had failed to raise a triable

issue of fact.



                                 5
     Dr. Jackson timely appeals the district court’s grant of

summary judgment on her Title VII constructive discharge and

disparate treatment claims.1



                      II.   STANDARD OF REVIEW

     We review the district court’s grant of summary judgment to

M.D. Anderson de novo, applying the same standard as the district

court, e.g., Brown v. Bunge Corp., 

, 781 (5th Cir.

2000), and ask whether the pleadings, depositions, and answers to

interrogatories, together with the affidavits, demonstrate that

no genuine issue of material fact remains and that the moving

party is entitled to judgment as a matter of law.       E.g., Boze v.

Branstetter, 

, 804 (5th Cir. 1990); FED. R. CIV. P.

56(c).   A factual dispute is genuine when a reasonable jury could

return a verdict for the non-moving party.       Anderson v. Liberty

Lobby Inc., 

, 248 (1986).

     The substantive law dictates which facts are material,

Stewart v. Murphy, 

, 533 (5th Cir. 1999), and an

issue is material if its resolution could affect the outcome of

the action, 

.    Moreover, in summary

judgment determinations, the factual record is reviewed in such a

     1
        This court need not address whether plaintiff raised a
genuine issue of material fact regarding the existence of a
continuing violation. Dr. Jackson waived review of these issues
by not incorporating them into the Argument of her Brief. See,
e.g., Sherrod v. Am. Airlines, 

, 1119 n.5 (5th Cir.
1998) (citing cases and FED. R. APP. P. 28).

                                  6
way that all inferences are drawn in the light most favorable to

the party opposing the motion.   E.g., Jurgens v. EEOC, 

, 388 (5th Cir. 1990).   Accordingly, we review the evidence

most favorably to Dr. Jackson.



           III. DR. JACKSON’S DISPARATE TREATMENT CLAIM

     Dr. Jackson claims that she was subjected to disparate

treatment based on racial animus at the time of her resignation.

Ultimately, these claims depend on whether she followed the

correct procedure in bringing the cause of action to federal

court.   Any claim for relief under Title VII, ab initio, must be

based on a charge of discrimination that was filed within the

Title VII statute of limitations period.   See 42 U.S.C. 2000e-

5(e)(1) (2000). Failure to file a discrimination charge with the

EEOC or the appropriate state department or commission    bars a

plaintiff from pursuing a discrimination lawsuit under Title VII.

Hence, we must evaluate whether Dr. Jackson satisfied the

statutory prerequisites to suit before we can consider the merits

of her assertions of race-based disparate treatment while in the

employ of M.D. Anderson.

     On appeal, M.D. Anderson argues that the district court was

correct in finding that Dr. Jackson’s claims were untimely.    M.D.

Anderson further contends that the time period for filing a

discrimination charge in Texas is 300 days, and that Dr.

Jackson’s only timely cause of action is her constructive

                                 7
discharge claim.   Dr. Jackson, in response, argues that she was

discriminated against “right up to the day in which she walked

out the doors of M.D. Anderson.”        She does not address M.D.

Anderson’s specific points regarding the appropriate statutory

period, nor does she attempt to characterize a particular

discriminatory event as having occurred within that period.

     The Supreme Court’s recent opinion in National Railroad

Passenger Corp. v. Morgan, - - U.S. - - -, 

(2002), outlines the requirements for the timely filing of

discrimination charges under Title VII.        In Morgan, the Supreme

Court stated that “discrete discriminatory acts are not

actionable if time barred, even when they are related to acts

alleged in timely filed charges.”        

  Under the

Court’s Title VII standard, each incident of discrimination and

of retaliatory employment action is a separate legally-cognizable

employment action.   

      Only those incidents that took

place within the timely filing period can be deemed actionable

under the statute.   

and every discrete discriminatory action “starts a

new clock for filing charges alleging that act,” a plaintiff’s

discrimination charge is required to be filed within the 180- or

300-day time period after the occurrence of that action.            

2   When a plaintiff’s cause of action stems out of incidents

     2
        In so reasoning, the Morgan Court distinguished Title
VII claims stemming from discrete incidences of discrimination

                                    8
occurring in Texas, filing a claim of discrimination with the

EEOC is tantamount to filing with the Texas Commission on Human

Rights (“TCHR”).    See, e.g., Vielma v. Eureka Co., 

,

462-63 (5th Cir. 2000) (“When a complainant filed her initial

charge with the EEOC, her charge will also be filed with the

TCHR.”).   Under the Worksharing Agreement between the EEOC and

the TCHR, the time period to file discrimination charges with the

EEOC is 300 days.    E.g., Griffin v. City of Dallas, 

,

612 (5th Cir. 1994).

     Thus, for Dr. Jackson to avoid having time-barred claims,

she must identify discrete instances of discrimination that

occurred no more than 300 days prior to the day on which she

filed her EEOC charge.   Since she filed her charge on July 14,

2000, all actionable discriminatory conduct must have occurred on

or after September 13, 1999.

     The vast majority of the alleged discrete discriminatory

actions in the instant case occurred when Dr. Jackson discovered

that she was not going to receive what she thought Dr. Duvic

promised her during the initial interview.   Dr. Jackson did not

review the Offer Letter until July 23, 1998.   Even if the latest



from claims arising out of an hostile work environment. Because
a hostile work environment is statutorily defined as a series of
separate acts that collectively constitutes a single “unlawful
employment practice,” the Court reasoned that the entire time
period of the hostile work environment can be considered by a
court in determining liability. 

Dr. Jackson does
not allege hostile environment in the instant case.

                                  9
of these actions “started a new clock,” these events were far

outside the 300-day window of opportunity provided under the

statute of limitations.3     Although she contends that she endured

race-based discrimination until her last day of employment at

M.D. Anderson, Dr. Jackson does not offer specific dates or other

chronologically-descriptive terms when identifying discrete

discriminatory actions.      A thorough examination of the record

reveals that the only alleged discrete action to occur within

that 300-day window of opportunity is her resignation from M.D.

Anderson.

      Dr. Jackson’s failure to file her claim in a timely manner,

given the Morgan Court’s continued insistence on punctuality,

forecloses the possibility of liability on the part of M.D.

Anderson on all claims other than her constructive discharge

cause of action.      Although the district court elected to examine

the merits of the disparate treatment claim, notwithstanding the

expiration of the statute of limitations, this court need not do

so.

          The district court’s grant of summary judgment as to the

disparate treatment claims was proper.      As a result, the only

remaining issues in this cases revolve around Dr. Jackson’s

alleged constructive discharge.


      3
        In fact, other than her resignation, Dr. Jackson’s last
discrete discriminatory act occurred 417 days prior to September
13, 1999.

                                   10
              IV. JACKSON’S CONSTRUCTIVE DISCHARGE CLAIM

     On appeal, Dr. Jackson also contends that she endured a

series of humiliations while working at M.D. Anderson.     This

series of events, she asserts, created an atmosphere causing her

to conclude that she had no option other than resigning her

employment at M.D. Anderson.    Under Title VII, a resignation is

actionable, allowing the plaintiff to seek compensatory damages,

only if the resignation qualifies as a constructive discharge.

See Brown v. Kinney Shoe Corp., 

, 566 (5th Cir.

2001).   We will evaluate Dr. Jackson’s claims by examining the

standards previously enunciated by this court.

     The Fifth Circuit has set the bar very high for plaintiffs

seeking to establish a constructive discharge.    See, e.g., 

(citing Benningfield v. City of Houston, 

, 378

(5th Cir. 1998)) (“Constructive discharge requires a greater

degree of harassment than that required by a hostile work

environment claim.”).    We apply the reasonable employee standard

in this particular context: To establish a constructive

discharge, Dr. Jackson must establish that “working conditions

were so intolerable that a reasonable person would feel compelled

to resign.”    E.g., 

; 

; Ward v. Bechtel Corp., 

, 202 (5th Cir. 1997).

     Although whether a reasonable employee would feel compelled

to resign is a somewhat fact-dependent inquiry, this court’s

decision in Barrow v. New Orleans Steamship Ass’n, 

292(5th Cir. 1994), listed the following claim-triggering events

to assist courts in evaluating when constructive discharge is

alleged: (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.   

quoted in

; 

.   These events are

considered singly or in combination, i.e., a single, greatly

significant event may be sufficient to create an intolerable

situation, as can several, less egregious events working in

tandem. See 

of a claim of constructive discharge

demands an extensive review of the practices, events, and

conditions at a given workplace that have allegedly compelled a

plaintiff to resign.4   Dr. Jackson contends that her series of

     4
        It is for this reason that the events allegedly
supporting Dr. Jackson’s constructive discharge claim do not
suffer the same statute of limitations problems that plague her
disparate treatment claims. Similar to a hostile work
environment cause of action, a claim for constructive discharge
can be described as a singular employment practice involving a
series of repeated acts that are so severe and pervasive that
they permeate the workplace. Cf. Landgraf v. USI Film Prods.,

, 429-30 (5th Cir. 1992) (“To prove constructive
discharge, the plaintiff must demonstrate a greater severity and
pervasiveness than the minimum required to prove a hostile work
environment.”). Although the Morgan Court did not discuss the

                                12
humiliations endured while working at M.D. Anderson included:

her contract being for a one-year term only; the fact that she

was being placed on a non-tenure track with the University of

Texas Medical School; her discovery of a memorandum from Dr.

Gagel to Dr. Duvic that allegedly memorialized their scheme to

hire Dr. Jackson on a temporary basis until a less qualified

white physician could achieve the required training to assume the

position; and the requirement that she work without proper pay or

resident support.5

     M.D. Anderson agrees with the trial court’s assessment of

the constructive discharge claim, specifically that at worst, Dr.

Jackson’s failure to receive tenure track position and inability


implications of its rationale on the constructive discharge
theory of discrimination, the only post-Morgan decision
considering this issue supports our basic assessment. See
Marrero v. Goya of P.R., Inc., - - - F.3d. - - -, No. 01-1984,

, at *15 (1st Cir. Aug. 28, 2002) (“Just as an act
of harassment that is not actionable in and of itself may form
part of a hostile work environment claim, [plaintiff]’s
experiences during her last week of work—although insufficient to
establish liability on their own—are properly part of her
constructive discharge claim.”)(citing 

).
     5
        Dr. Jackson also alludes to the reports of Dr. Vickie
Shannon, an African-American colleague, who also made complaints
of disparate treatment while working under Dr. Gagel’s
supervision. Dr. Jackson asserts that Dr. Shannon’s complaints
are relevant to her because they provided Dr. Jackson reason to
believe that her situation working with Dr. Gagel would not
change and thus, she would have no alternative but to resign.
Although this evidence may go toward explaining Dr. Jackson’s
thought processes in deciding to resign, it is irrelevant because
there is no explanation of why another person’s experiences could
indirectly make Dr. Jackson’s working conditions so intolerable
that a reasonable person would be compelled to resign.

                               13
to pursue a private cosmetic surgery practice were examples of

disparate treatment, but not intolerable working conditions.

M.D. Anderson argues that Dr. Jackson’s claims as to pay and

resident support do not support her claim for constructive

discharge and that she was treated in the same way as other full-

time physician employees, especially in regard to the PRS

Agreement.

     After an exhaustive examination of the summary judgment

record, we find that Dr. Jackson has failed to adduce evidence

that her decision to resign amounted to a constructive discharge

based on any of the factors identified in Barrow.    Her best

arguments under the Barrow factors, had she attempted to assert

them, would fall short.   Making a reasonable inference in Dr.

Jackson’s favor, we could assume that Dr. Jackson received less

pay than originally promised.   However, this would not constitute

a reduction in pay because she began her employment at the salary

of $150,000 per annum; while under the employ of M.D. Anderson,

no actual reduction in salary occurred. In fact, she received a

pay raise of $10,000 only thirty-four days after beginning work

for M.D. Anderson.    Further, the lack of proper staff does not,

as argued, constitute a demotion of any kind or implicate any

other Barrow event.    Even if, arguendo, Dr. Jackson did lose some

responsibilities perhaps implicating another of the Barrow

factors, a mere change in responsibilities, without more, will

not support a claim for constructive discharge.    Epps v. NCNB

                                 14
Tex., 

, 46 (5th Cir. 1994).6   Taken as a whole or

individually, the employment actions in the instant case do not

compare in kind or degree to those articulated in Barrow.

     Although the list of Barrow factors is non-exclusive, 

, Dr. Jackson has failed to present any other

workplace characteristics sufficient to create a genuine issue of

material fact that a reasonable employee would consider her work

environment at M.D. Anderson intolerable.   Despite the fact that

Dr. Jackson is not required to offer proof that it was M.D.

Anderson’s intention to force her to resign, e.g., 

, she nevertheless argues that her supervisors at M.D.

Anderson conspired to have a white doctor replace her.    In the

light most favorable to Dr. Jackson, this argument is still

problematic because Dr. Jackson fails to allege any aggravating

factors.   

; 

(stating

that discrimination alone, without aggravating factors, is

insufficient for a claim of constructive discharge).     The fact

that nothing ever came of this alleged conspiracy to replace Dr.

Jackson is additionally pertinent because a “remote possibility”

of an adverse employment action would not make a reasonable

employee feel compelled to resign.   

.

     Given the high standard that this court has set for

     6
        Moreover, several events suggest that she did not suffer
a responsibility loss, as Dr. Jackson was made the Director of
the Mohs Surgery Unit, and was given the responsibility to
establish the unit at M.D. Anderson.

                                15
establishing a constructive discharge, it is clear that Dr.

Jackson failed to proffer the evidence necessary to raise a

genuine issue of material fact supporting her claim.



                          V.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                16