USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-1156
JORGE VEGA AND EUSEBIO LEON,
Plaintiffs, Appellants,
v.
KODAK CARIBBEAN, LTD.,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
___________________
_________________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
______________
_________________________
Carlos F. Lopez and Maria Del C. Gomez-Cordova on brief for
________________ __________________________
appellants.
Carlos V. J. Davila, Jacqueline D. Novas, and Fiddler,
_____________________ _____________________ ________
Gonzalez & Rodriguez on brief for appellee.
____________________
_________________________
August 24, 1993
_________________________
SELYA, Circuit Judge. William Shakespeare once wrote
SELYA, Circuit Judge.
______________
that "parting is such sweet sorrow." In this case, which
requires us to mull the circumstances under which an employee's
"early retirement" can be considered a "constructive discharge,"
plaintiffs' parting with their longtime employer proved more
sorrowful than sweet. When plaintiffs sued, the district court
added to their pain, granting the employer's motion for summary
judgment. We can offer little comfort.
I
I
_
Background
Background
__________
Consistent with the method of Fed. R. Civ. P. 56, we
draw upon the undisputed facts to set the stage for what
transpired.
Defendant-appellee Kodak Caribbean, Ltd. (Kodak)
decided to downsize its operations in Puerto Rico. To this end,
it announced the availability of a voluntary separation program
(the VSP).1 On September 15, 1989, Kodak held a meeting to
explain the VSP to its local work force. The company distributed
descriptive documents to virtually all Kodak employees, save only
for certain managerial and human resources personnel, regardless
of age or years of service. The written materials spelled out
the benefits afforded, the method of calculating severance pay,
and how the program would be implemented.
____________________
1The record reflects that Kodak's parent company decided to
slash costs by reorganizing its operations throughout the United
States and, consequently, promulgated the VSP on a nationwide
basis. The Puerto Rico reduction in force was part and parcel of
this larger reorganization.
2
Kodak encouraged workers to participate in the VSP, but
did not require them to do so. Withal, the company informed all
its employees that if substantially fewer than twenty-six
individuals opted to enter the VSP, others would be reassigned or
furloughed in order to reach the desired staffing level.
Two veteran employees, Jorge Vega and Eusebio Leon,
were among those who chose to participate in the VSP. After
signing an election form on October 4, 1989, Leon received a
lump-sum severance payment of $28,163.16 plus other benefits.
Vega followed suit on October 10, 1989, executing a similar form
and receiving a $52,671.00 severance payment. The men retired on
the dates designated in their respective election forms. At no
time did either man ask to revoke his election or offer to refund
his severance payment.
In 1990, Vega and Leon brought separate suits against
Kodak, each alleging discrimination on the basis of age. Their
complaints, which invoked the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. 621-634 (1988 & Supp. III 1991), and
certain Puerto Rico statutes, charged that Kodak's implementation
of the VSP violated the law. The district court consolidated the
two cases and, on December 10, 1992, granted Kodak's motion for
brevis disposition.2 This appeal ensued.
______
____________________
2Appellants' suits triggered the district court's federal
question jurisdiction. See 28 U.S.C. 1331 (1988). However,
___
when the district court disposed of the ADEA claims, the pendent
claims became subject to dismissal for want of subject matter
jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715,
___ ____________________ _____
726 (1966) ("[I]f the federal claims are dismissed before trial,
. . . the state claims should be dismissed as well."); Gilbert v.
_______
3
II
II
__
The Legal Framework
The Legal Framework
___________________
In a wrongful discharge case under the ADEA, the
plaintiff bears the ultimate "burden of proving that . . . he
would not have been fired but for his age." Freeman v. Package
_______ _______
Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988). Absent direct
_________
evidence of purposeful age discrimination and no such evidence
embellishes the record before us the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
_______________________ _____
05 (1973), initially requires that a plaintiff establish a prima
facie case by demonstrating that he was (i) within the protected
age group, (ii) meeting the employer's legitimate performance
expectations, (iii) actually or constructively discharged, and
(iv) replaced by another individual of similar skills and
qualifications, thereby confirming the employer's continued need
for equivalent services. See Mesnick v. General Elec. Co., 950
___ _______ __________________
F.2d 816, 823 (1st Cir. 1991), cert. denied, 112 S. Ct. 2965
_____ ______
(1992). When a reduction in force is involved, a plaintiff may
satisfy the fourth element by demonstrating that the employer did
not treat age neutrally in shrinking its payroll. This lack of
neutrality may be manifested either by a facially discriminatory
policy or by a policy which, though age-neutral on its face, has
the effect of discriminating against older persons, say, by
____________________
City of Cambridge, 932 F.2d 51, 67 (1st Cir. 1991) (similar),
_________________
cert. denied, 112 S.Ct. 192 (1992); Brennan v. Hendrigan, 888
____ ______ _______ _________
F.2d 189, 196 (1st Cir. 1989) (similar). Hence, we focus
exclusively on appellants' ADEA claims.
4
leading inexorably to the retention of younger employees while
similarly situated older employees are given their walking
papers. See Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110-11
___ ______ _________________
(1st Cir. 1989); Holt v. Gamewell Corp., 797 F.2d 36, 37-38 (1st
____ ______________
Cir. 1986).
Establishing a prima facie case creates a presumption
that the employer unlawfully discriminated and shifts the burden
of production to the defendant. See Hebert, 872 F.2d at 1110-11.
___ ______
At this second stage, the employer must rebut the inference of
age discrimination by articulating some legitimate,
nondiscriminatory reason for the employment action. See Mesnick,
___ _______
950 F.2d at 823; Hebert, 872 F.2d at 1111. If the employer
______
advances the required showing, the inference originally generated
by the prima facie case drops from sight. In that event, it
falls upon the plaintiff (who bears the burden of persuasion
throughout) to show that the employer's alleged justification is
a mere pretext for age discrimination. See Mesnick, 950 F.2d at
___ _______
823. To prevail at this third stage, the plaintiff must
ordinarily do more than impugn the legitimacy of the employer's
asserted justification; he must also adduce evidence "of the
employer's discriminatory animus." Id. at 825; see also Hazen
___ ___ ____ _____
Paper Co. v. Biggins, 113 S. Ct. 1701, 1706, 1708 (1993) (stating
_________ _______
that liability under the ADEA depends upon whether age "actually
motivated the employer's decision" and hesitating to infer age-
based animus solely "from the implausibility of the employer's
explanation"); cf. St. Mary's Honor Ctr. v. Hicks, 61 U.S.L.W.
___ ______________________ _____
5
4782, 4785 (U.S. June 25, 1993) (holding that success in a race-
discrimination suit requires a "finding that the employer's
action was the product of unlawful discrimination" and not merely
"the much different (and much lesser) finding that the employer's
explanation of its action was not believable").
The intersection at which the burden-shifting framework
meets Rule 56 is also well mapped. To survive summary judgment,
"a plaintiff must establish at least a genuine issue of material
fact on every element essential to his case in chief." Mesnick,
_______
950 F.2d at 825; see also Celotex Corp. v. Catrett, 477 U.S. 317,
___ ____ _____________ _______
323 (1986); Hebert, 872 F.2d at 1106. In other words, a
______
plaintiff must adduce some minimally sufficient evidence to
support a jury finding that he has met his burden at the first
stage, and again at the third stage (so long as the defendant has
met its second-stage burden by articulating a nondiscriminatory
reason for the adverse employment action). Moreover, the
material creating the factual dispute must herald the existence
of "definite, competent evidence" fortifying the plaintiff's
version of the truth. Mesnick, 950 F.2d at 822; see also Mack v.
_______ ___ ____ ____
Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
___________________________
Optimistic conjecture, unbridled speculation, or hopeful surmise
will not suffice. See Medina-Munoz v. R.J. Reynolds Tobacco Co.,
___ ____________ _________________________
896 F.2d 5, 8 (1st Cir. 1990).
On appeal, we afford plenary review to a grant of
summary judgment and possess the power to affirm on any
independently sufficient ground made manifest by the record. See
___
6
Mesnick, 950 F.2d at 822; Garside v. Osco Drug, Inc., 895 F.2d
_______ _______ _______________
46, 48-49 (1st Cir. 1990).
III
III
___
Analysis
Analysis
________
On this record, appellants fall prey to Rule 56 at
square one, for they have failed to adduce evidence sufficient to
establish their prima facie case. We explain briefly.
To satisfy the third element in the prima facie case,
ADEA suitors who claim to have been wrongfully ousted from their
jobs must demonstrate that they were actually or constructively
discharged. Here, appellants concede that they were not
cashiered. They maintain, however, that Kodak's sponsorship of
the VSP effected their constructive discharges by forcing them
into an unpalatable (and unwarranted) choice between early
retirement and dismissal.3 The facts of record, fused with the
appropriate legal standard, belie the charge.
Mere offers for early retirement, even those that
include attractive incentives designed to induce employees who
might otherwise stay on the job to separate from the employer's
service, do not transgress the ADEA. See Henn v. National
___ ____ ________
Geographic Soc'y, 819 F.2d 824, 828 (7th Cir.) (characterizing an
________________
early retirement package as "a boon" to the recipient and not
____________________
3We use the euphemism "early retirement" in its broad,
nontechnical sense to include any employer-sponsored plan that
provides a special benefit to an employee in return for a
voluntary decision to withdraw from active employment at an
earlier-than-anticipated time. The VSP is such a plan.
7
automatically indicative of age discrimination), cert. denied,
_____ ______
484 U.S. 964 (1987); see also Hebert, 872 F.2d at 1111; Schuler
___ ____ ______ _______
v. Polaroid Corp., 848 F.2d 276, 278 (1st Cir. 1988). To
_______________
transform an offer of early retirement into a constructive
discharge, a plaintiff must show that the offer was nothing more
than a charade, that is, a subterfuge disguising the employer's
desire to purge plaintiff from the ranks because of his age. See
___
Hebert, 872 F.2d at 1111. Under this dichotomy, offers which
______
furnish employees a choice in name only are impermissible
because, in the final analysis, they effectively vitiate the
employees' power to choose work over retirement. Phrased another
way, the law regards as the functional equivalent of a discharge
those offers of early retirement which, if refused, will result
in work so arduous or unappealing, or working conditions so
intolerable, that a reasonable person would feel compelled to
forsake his job rather than to submit to looming indignities.
See Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.
___ _______ ____________________
1986); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st
_____________ _______________
Cir. 1977). In terms of this standard, a plaintiff who has
accepted an employer's offer to retire can be said to have been
constructively discharged when the offer presented was, at rock
bottom, "a choice between early retirement with benefits or
discharge without benefits," or, more starkly still, an
"impermissible take-it-or-leave-it choice between retirement or
discharge." Hebert, 872 F.2d at 1113.
______
Kodak's promulgation of the VSP cannot be said to have
8
presented Vega and Leon with this sort of Hobson's choice. The
offer was cast as one to be accepted or rejected at an employee's
will. The contract and explanatory memorandum contained numerous
words and phrases alerting the reader to its voluntary nature.
Moreover, the circumstances of the offer were not coercive:
employees had six weeks to mull the offer's ramifications before
making a decision; they were encouraged to gather information and
ask questions; and they retained the right to revoke the election
for a period of time. An employer's effort to construct a
pressure-free environment conducive to calm decisionmaking in the
employee's enlightened self-interest often constitutes the
hallmark of a real offer as opposed to an ultimatum. See Henn,
___ ____
819 F.2d at 828-29 (considering similar factors in analyzing the
voluntariness of an early retirement plan). So it is here.
Finally, nothing in the record indicates that, for any
particular employee, refusing early retirement meant either
discharge or the imposition of working conditions so abhorrent as
to justify resignation. To be sure, Kodak said that it would
likely furlough a number of employees if not enough workers
elected to depart voluntarily. But, three things palliate the
inference that appellants seek to draw from this statement: (1)
the company simultaneously announced, both orally and in writing,
that if a sufficient complement participated in the VSP, the need
to thin the ranks unilaterally would never arise; (2) it did not
directly or indirectly indicate which particular individuals
would be tapped should layoffs prove to be necessary; and (3) it
9
never threatened that persons ultimately selected for involuntary
separation would be treated harshly.4
Notwithstanding the formidable array of circumstances
weighing in favor of a finding that appellants resigned
voluntarily, appellants assert that they were constructively
discharged because they believed that rejecting the VSP was
________
tantamount to forfeiting their jobs. We discern no genuine issue
of material fact; assuming that appellants' mindset was as
stated, their conclusion does not follow. An employee's
perceptions cannot govern a claim of constructive discharge if,
and to the extent that, the perceptions are unreasonable. See
___
Calhoun, 798 F.2d at 561. Were the rule otherwise, any employee
_______
who quit, and thereafter thought better of it, could claim
constructive discharge with impunity. The law, therefore,
demands that a disgruntled ex-employee's professed belief about
the likely consequences of refusing an offer for early retirement
be judged by an "objective standard," the focus of which is "the
reasonable state of mind of the putative discriminatee." Id.
___
(citations and internal quotation marks omitted). In light of
the uncontroverted facts of record here, appellants' impression
that the ignominy of firing comprised the only alternative to
accepting the VSP was thoroughly unreasonable.
____________________
4For example, Kodak never warned that involuntarily
separated employees would be stripped of severance benefits or
treated less favorably than those persons who chose to enter the
VSP. And, moreover, the company suggested that attempts would be
made to offer involuntarily separated employees comparable
positions elsewhere in the Kodak organization, as opposed to
simply cutting them loose.
10
In an attempt to coat their subjective beliefs with a
patina of plausibility, appellants ignore the fact that no
firings or layoffs ever materialized, and, instead, tout a
supervisor's statement that Kodak shelters "no sacred cows."
This statement, directed not toward Vega and Leon in particular
but toward Kodak's entire work force, articulated an unfortunate
but hardly remarkable condition of working life: broad-based
subjugation to the risk of future termination is common fare in a
depressed economic climate. It, alone, is insufficient to
constitute constructive discharge. See Bodnar v. Synpol, Inc.,
___ ______ ____________
843 F.2d 190, 193-94 (5th Cir.) (holding that the risk, shared by
all company employees, that appellants' posts would be eliminated
if too few accepted an early retirement plan did not constitute a
"working condition[] . . . so intolerable as to force appellants'
resignation"), cert. denied, 488 U.S. 908 (1988); Calhoun, 798
_____ ______ _______
F.2d at 561 (stating that an employee is not "guaranteed a
working environment free from stress") (quoting Bristow v. Daily
_______ _____
Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied,
___________ _____ ______
475 U.S. 1082 (1986)).
In fine, the record is barren of evidence competent to
support an inference that Kodak placed appellants "between the
Scylla of forced retirement [and] the Charybdis of discharge."
Hebert, 872 F.2d at 1112. Rather, Kodak asked its employees to
______
choose between immediate severance with its associated benefits
or continued work with its inherent risks. As the alternative to
separation from the employer's service was not so onerous as to
11
compel a reasonable person's resignation, appellants cannot
convincingly claim to have been constructively discharged.
IV
IV
__
Conclusion
Conclusion
__________
We need go no further. Although Kodak has assembled an
armada of additional asseverations in support of the decision
below, addressing those points would serve no useful purpose. It
suffices to say that, since appellants failed to limn a prima
facie case of age discrimination,5 the district court
appropriately entered summary judgment in the defendant's favor.
Affirmed.
Affirmed.
________
____________________
5Because appellants had the burden of adducing evidence on
each of the four elements of their prima facie case, the
deficiency we have described is fatal to their suits. Thus,
although we note in passing that their prima facie case flounders
in another respect as well the record does not support their
assertions that Kodak failed to treat age neutrally in its
authorship and implementation of the VSP we do not pause to
elucidate the point.
12