[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FOR THE ELEVENTH CIRCUIT December 20, 2005
________________________ THOMAS K. KAHN
CLERK
No. 04-10753
________________________
D. C. Docket No. 03-00194-CV-1-WS
NORMAN E. ROWELL,
Plaintiff-Appellant,
versus
BELLSOUTH CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 20, 2005)
Before CARNES and PRYOR, Circuit Judges, and FORRESTER*, District Judge.
FORRESTER, District Judge:
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
Plaintiff, Norman E. Rowell, filed suit against BellSouth Corporation
(“BellSouth”)1 pursuant to the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621 et seq., contending that due to his age, BellSouth forced him to
retire during a reduction in force. The district court found that Rowell’s claim was
meritless because he could not show that BellSouth constructively discharged him,
and therefore Rowell did not suffer an adverse employment action. On appeal,
Rowell contends that the district court erred in holding that a reasonable person
would not have felt compelled to accept the voluntary severance plan offered by
BellSouth because Rowell was convinced that if he did not accept voluntary
severance, he would be terminated involuntarily.
Rowell was hired as a lineman by BellSouth in 1973. He later became a
lineman foreman, a position he held until his retirement in 2002. In May 2002,
BellSouth announced that it would undertake reduction in force of its management
personnel. Rowell’s supervisor explained that the reduction in force would take
place in two stages. First, an enhanced voluntary package would be offered to
employees. Depending on his years in service, if an employee accepted early
retirement, he could receive a minimum of 50% and a maximum of 150% of his
1
BellSouth asserts that the proper named Defendant is BellSouth Telecommunications,
Inc., and that the district court entered a scheduling order directing the correction of the
Defendant’s name. We have not located such an order and thus continue to refer to Defendant as
BellSouth Corporation.
2
base salary, as well as other benefits. At the conclusion of the voluntary program,
if not enough employees had retired, BellSouth would institute a second stage,
involuntary reduction program to meet its workforce goals. The involuntary
program would offer a minimum of 15% and a maximum of 100% of an
employee’s salary and reduced additional benefits.
To implement the reduction in force, BellSouth employees were divided
into “universes,” which were groups of employees with similar job descriptions.
Rowell, age 52 at the time of the reduction, was in a universe with five other
employees: Greg Sharpe, age thirty-seven; Ferdinand Williams, age forty; Doug
Farnell, age fifty-three; Billy James, age thirty-one; and Gwen DeValk, age forty-
seven. BellSouth determined that two positions in Rowell’s universe would be
eliminated. To be prepared in the event that additional cuts were needed at the
second stage, BellSouth instructed managers to begin ranking and rating
employees on each of six competency factors. The six factors were (1)
Demonstrates Broad Business Knowledge and Savvy; (2) Achieves Results
Through Speed and Decisiveness; (3) Maintains a Focus on Customer
Satisfaction; (4) Instills Purpose and Vision; (5) Communicates Openly and
Effectively; and (6) Builds High Performing Teams and Individual Talent.
3
If necessary, a certain number of the lowest ranking employees in each
universe would then be cut during the involuntary second stage. All employees,
including Rowell, were informed that depending on the number of employees that
accepted the voluntary retirement in the first stage, it was possible that enough
new job openings would be created so that an employee whose position was
eliminated after the voluntary phase could be transferred within the company.
Specifically, Les Durel, a manager in Rowell’s chain of supervision, informed
employees that it was likely that there would be positions available in Mississippi
because the company was eliminating some part-time contract positions there and
would need full-time hires to replace them. During the initial stages of the
reduction in force, immediate supervisors were told not to disclose the actual
ratings given to managers in the universe they ranked, but they were permitted to
give managers an idea of whether they were at risk so that a manager could decide
whether to take the voluntary package.
Rowell and Ferdinand Williams received the lowest scores in Rowell’s
universe. See Rowell Depo., at 76-78. Doug Farnell, a year older than Rowell,
received a score sufficient to place him in the top four positions in the group.
Rowell then asked Carl Robitzsch, his immediate supervisor, whether he “needed
to be looking for a job elsewhere,” to which Robitzsch, responded, “yes.” See id.
4
at 69-70 (Rowell testified he told Robitzsch, “I’m one of the kind of guys I just
want to know. I don’t want to sit here and think about it, I want to know . . . was I
one of the ones that needed to be looking for a job elsewhere, and he told me I
was.”). Rowell also testified that he and Robitzsch did have a discussion about
“the potential for any jobs opening up elsewhere.” Id. at 70-71. After speaking to
the other members in his universe, Rowell learned that Williams would be taking
early retirement but that Sharpe, Farnell, and James would not. Rowell never
learned what DeValk intended to do. See id. at 76-77, 80-82.
When Rowell received the papers for the voluntary early retirement offer in
mid-August 2002, he reviewed them carefully and even discussed them with his
attorney. See id. at 51. He further testified that no one forced him to take the
voluntary retirement and that he could have rejected the offer and taken his
chances on finding something else within the company. See id. at 57-58, 75. He
had no reason to believe he could not have been a candidate for the additional job
openings that might be created by the voluntary first stage. See id. at 78-79, 118-
19. In fact, Rowell asked Robitzsch to inform him if any other job openings
became available at BellSouth. See id. at 70-71, 74.2 After talking over his
2
Robitzsch did not do so, but positions were not open until after the first phase closed. By
that point, Rowell had already accepted the voluntary early retirement package, and Robitzsch
would have had no reason to inform Rowell of any job openings.
5
options with his attorney, Rowell signed the papers to accept the voluntary early
retirement on September 6, 2002. See id. at 74-75. As part of his acceptance, he
signed a waiver releasing any and all claims against BellSouth except for an
ADEA claim. See id. at 86-88.
Rowell was separated on September 30, 2002 and received $91,500 in
severance pay under the voluntary program. He also received a lump sum pension
benefit of $188,000 because he was eligible for retirement. Rowell testified that
because of the success of the voluntary program, he now understood that sufficient
vacancies were created that he likely would have been able to transfer within
BellSouth had he wanted to continue his employment. See id. at 122-23.
In support of his claim for age discrimination, Rowell testified that he
believed Robitzsch had discriminated against him during the ranking process. See
id. at 102. Rowell admitted, however, that other than the ranking scores,
Robitzsch had never said or done anything to suggest he would discriminate on the
basis of age. See id. at 103-04. Rowell also did not believe any other BellSouth
employee discriminated against him. See id. at 104. He did not want to risk losing
the half a year’s pay that was only available to those who took the voluntary early
retirement. See id. at 115.
6
The district court concluded that Rowell could not show he was
constructively discharged because he could not have reasonably believed his only
choices were retirement or discharge. The court recognized that Rowell’s choice
may have been a difficult one, but it was not “no choice” at all. Because the
district court found that Rowell could not establish an adverse employment action,
the court did not consider Rowell’s alternative argument that he could establish
BellSouth’s legitimate nondiscriminatory reasons for the ranking were pretextual.
Rowell then filed the instant appeal.
Although the district court found that Rowell failed to establish a prima
facie case of age discrimination because he could not demonstrate he was
constructively discharged, we may affirm the district court “on any ground that
appears in the record, whether or not that ground was relied upon or even
considered by the court below.” Powers v. United States, 996 F.2d 1121, 1123-24
(11th Cir. 1993). Many courts, in reduction-in-force cases, begin by considering
whether it is being done in an age neutral way, presumably because a reduction in
force generates adverse employment actions, which of course are quite lawful if
not based on impermissible characteristics such as age. As the parties have briefed
the contention that BellSouth discriminated against Rowell on the basis of age, we
will begin at this point.
7
We review the grant of summary judgment de novo viewing the facts and
drawing all reasonable inferences in favor of the nonmoving party. The “ADEA
makes it ‘unlawful for an employer to fail to hire or to discharge any individual or
otherwise discriminate against an individual . . . because of that individual’s age.’”
See Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(quoting 29 U.S.C. § 623(a)(1)).
In Williams v. General Motors Corp., 656 F.2d 120 (5th Cir. Unit B Sept.
1981), we applied the prima face case of age discrimination to a reduction in force
case and found the elements to be a plaintiff who is (1) within the protected age
group, (2) adversely affected, (3) qualified to assume another position at the time
of discharge, and (4) “evidence, circumstantial or direct, from which a factfinder
might reasonably conclude that the employer intended to discriminate in reaching
the decision at issue.” Id. at 129. To satisfy the last prong, we elaborated that the
“plaintiff [must] produce some evidence that an employer has not treated age
neutrally, but has instead discriminated based upon it. Specifically, the evidence
must lead the factfinder reasonably to conclude either that the defendant (1)
consciously refused to consider retaining or relocating a plaintiff because of his
age, or (2) regarded age as a negative factor in such consideration.” Id. at 129-30.
We noted, for example, that a plaintiff could present circumstantial statistical
8
evidence regarding age; or evidence that the employer’s plan was subterfuge for
discrimination, such as evidence that an employee-rotation plan existed which
shifted protected workers into jobs most likely to be cut in the reduction in force.
Id. at 130.
Rowell is within the protected age group, and because no one has argued
otherwise, we assume that he was qualified to take another position at the time he
accepted the voluntary early retirement package. Rowell contends that the
competency rankings conducted by Robitzsch were discriminatory because (1)
they did not take into consideration the employees’ training, experience or job
performance, (2) he received higher scores on his October 2001 and February
2002 evaluations than his evaluation done in August 2002 in preparation for the
reduction in force, (3) he was better qualified for his job than Greg Sharpe, age
thirty-nine, and Billy James, age thirty-one; and (4) Cathy McIntosh and Norman
Robbins, other BellSouth employees, testified that they believed their rankings
were impermissibly based on age.
Rowell takes issue with the six categories of competency rankings because
they did not account for training, experience, or job performance. Rowell does not
contend that the six categories were selected as a subterfuge or code for achieving
a younger work force; rather, he simply believes that they were not the appropriate
9
categories on which to rank employees. It is by now axiomatic that we cannot
secondguess the business decisions of an employer. See, e.g., Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004). BellSouth determined that
these six areas were of greatest importance. Rowell did not develop any evidence
to demonstrate that the selection or application of these categories would result in
discrimination on the basis of age. Furthermore, only four of the six competency
areas used in the reduction in force were also used in the regular job performance
evaluations conducted by BellSouth. Thus, that Rowell received different scores
on his annual review and the review done for purposes of reduction does not
provide evidence of discriminatory animus. The facts that the annual evaluations
covered only that year’s performance whereas the reduction in force evaluations
were to take into consideration the employee’s whole experience also make the
comparison not relevant for purposes of determining whether there was
discriminatory intent.
Rowell next contends that he was better qualified than Sharpe and James.
Sharpe had been employed by BellSouth for thirteen years and served as a network
manager for five years at the time of the reduction in force. James had worked for
BellSouth for five years and had been promoted to network manager in September
2001. Rowell believed he was more qualified than James and Sharpe because he
10
had more job experience, knowledge of outside plant equipment and procedures,
BellSouth “schooling,” and knowledge of quality and safety issues. These factors,
however, were not relevant to the competency ratings. Furthermore, Rowell’s
personal belief that he was more qualified is not sufficient to demonstrate
discriminatory intent. See, e.g., Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253-54
(11th Cir. 2000). Moreover, Sharpe and James were not the only other individuals
in Rowell’s universe, and thus a discussion of their qualifications is not reflective
of what happened in Rowell’s entire universe.
In fact, there is no obvious correlation between age and ranking in Rowell’s
universe. The people in Rowell’s universe were ranked as follows:
Name Age Rank
James 31 3.333
Sharpe 37 3.500
Williams 40 3.000
DeValk 47 3.667
Rowell 52 3.000
Farnell 53 3.167
Rowell and Williams, one of the younger individuals in the universe, received the
lowest scores, and at least one of the four higher scorers, Doug Farnell, was older
than Rowell.
Finally, McIntosh and Robbins were in different universes than Rowell, and
thus, their testimony would not tend to show that BellSouth treated Rowell in a
11
discriminatory manner. For example, McIntosh testified that her manager, Carla
Little, performed the competency ratings for six employees in McIntosh’s universe
of thirteen people. Of those six employees, four got together to discuss their
rankings and discovered that the rankings correlated with seniority, not necessarily
age, for these four employees. McIntosh’s statements about the rankings of only
four people out of a universe of thirteen, however, cannot have any relevance for
what happened in her universe, let alone Rowell’s.
Robbins testified that he met with his supervisor, Everett Gillis, several
times about whether he was at risk in the involuntary reduction. During a
conversation with Gillis about which employees would be let go in the reduction,
Rowell’s name came up. See Robbins Depo., at 14. Gillis said Rowell and others
at risk, including Robbins, would be let go “due to how it was rated and w[h]ere
we fell out in the rating.” Id. at 14-15. Later in the conversation, Gillis told
Robbins “it was more based on age.” Id. at 15. He did not tell Robbins what led
him to believe that or what gave him that information. Id. During a separate
conversation about the reduction in force, Gillis told Robbins that “a lot of the
decision is based on that the company wants to keep the youth. And because of
my age, it was detrimental to me.” Id. at 20. Again, Gillis did not tell Robbins
where he got that information. Id. at 20. Robbins testified that Gillis told him the
12
company wanted youth for “really vague superfluous ideas that [Gillis] had. It
was more like costs less, less insurance and stuff like that. And they can develop
them in what they wanted them to do.” Id. at 20-21. Robbins was then asked
whether “it was your impression that Mr. Gillis was reflecting his own personal
opinion, or whether he was somehow telling what he had been told by some senior
person or upper management as far as these references to age playing some part in
how people were being rated during the reduction in force?” Id. at 40. Robbins
responded: “It was [Gillis’] personal opinion.” Id. at 40, 45. Robbins also
testified that Gillis pointed only to himself as the basis for the comments that the
company wanted to keep youth. Id. at 41.
On motions for summary judgment, we may consider only that evidence
which can be reduced to an admissible form. See Mecuba v. Deboer, 193 F.3d
1316, 1324-25 (11th Cir. 1999) (although evidence that is otherwise admissible
may be accepted in an inadmissible form at summary judgment stage, hearsay
could not be reduced to admissible form). If it is to be contended that Gillis’s
statements represent the policy of BellSouth, Federal Rule of Evidence
801(d)(2)(D) might make the statement admissible. That rule states that a
statement is not hearsay if the “statement is offered against a party and is . . . a
statement by the party’s agent or servant concerning a matter within the scope of
13
the agency or employment, made during the existence of the relationship.” Id.
Under Rule 104, a court would have to determine by a preponderance of the
evidence that Gillis was speaking as an agent of BellSouth at the time he made
these statements. Nothing in Robbins’ testimony, however, supports such a
conclusion. It is in reality nothing but the inadmissible opinion of Gillis.
It is true that courts have admitted statements of managers under Rule
801(d)(2)(D) where there is some evidence that the statements reflected some kind
of participation in the employment decision or policy of the employer. See, e.g.,
Yates v. Rexton, Inc., 267 F.3d 793 (8th Cir. 2001); Woodman v. Haemonetics
Corp., 51 F.3d 1087 (1st Cir. 1995). These cases, however, are distinguishable.
In Yates, the plaintiff was terminated at age 68 as part of a reduction in force. 267
F.3d at 798. The plaintiff proffered evidence that two executives of his
employer’s parent company “were of the opinion that employees over age 60
should retire.” Id. at 797. The record also reflected that these executives exerted
pressure on the plaintiff’s chain of supervisors to terminate the plaintiff’s
employment. The Eighth Circuit held that even if these two executives did not
play a role in the plaintiff’s termination, their statements were admissible under
Rule 801(d)(2)(D) because “‘[s]ignificant involvement, either as advisor or other
participant in a process leading to a challenged decision,’ may be sufficient to
14
establish agency under Rule 801(d)(2)(D).” Id. at 802 (quoting Equal
Employment Opportunity Comm’n v. Watergate at Landmark Condo., 24 F.3d
635, 640 (4th Cir. 1994)).
In Woodman, the plaintiff was also terminated as a result of a reduction in
force. The plaintiff proffered testimony that his supervisor had attended a meeting
with the company’s upper management at which they discussed future employee
terminations. Following the meeting and referencing the discussion about
terminations, the supervisor made the comment, “These damn people – they want
younger people here.” 51 F.3d at 1089-90. The defendant argued that the
supervisor’s statement was not admissible under Rule 801(d)(2)(D) because she
was only a “first line” supervisor with no authority to make termination decisions.
The court held, however, that her statement was admissible because she had
attended the meeting in the scope of her employment and evaluated employees,
including recommending the plaintiff’s termination. Thus, the court found, she
was directly involved in the reduction in force. Id. at 1094.
Here, in contrast, there is no evidence that Gillis was involved in the
decisions of how to structure the reduction in force or how to design the
performance evaluations used during the involuntary stage of the reduction. There
is also no evidence that Gillis had received any information from BellSouth’s
15
upper management to indicate that age was to play a factor in these decisions.
Rather, the only evidence before the court is Robbins’ testimony that Gillis’
statements were Gillis’ own “personal opinion” and not something that Gillis had
been told by upper management about the role age was to play in the performance
ratings. See Robbins Depo., at 40, 45. In fact, Gillis only pointed to himself as
the basis for his comments that the company wanted to keep youth. Id. at 41.
Significantly, not only did Robbins testify that Gillis’ comments reflected only
Gillis’ opinion, Robbins was not able to identify any particular person in
BellSouth to whom Gillis could point as the basis for his comments. Cf. Carden v.
Westinghouse Electric Corp., 850 F.2d 996, 1002 (3d Cir. 1988) (excluding
testimony under Rule 801(d)(2)(D) where supervisor only stated to plaintiff that
“they” wanted a younger person for the job and the record did not establish a
foundation as to the identity of “they”).
We find Gillis’ testimony similar to that which we rejected in Mitchell v.
USBI Co., 186 F.3d 1352 (11th Cir. 1999). There, the employer engaged in a
reduction in force of its engineers because a contract with NASA had been
cancelled. Id. at 1353. After the layoff list was developed, managers worked with
members of the company’s human resources department to determine whether any
of those slated for layoff were eligible to “bump” other employees. Under the
16
layoff policy, a more senior employee could bump a less senior employee if the
senior employee had the requisite qualifications to perform the less senior’s job.
Id. The plaintiff was on the layoff list and the company determined that he could
not bump any of the twenty less senior employees because he did not have the
requisite qualifications. Although it was unclear the role performance evaluations
played in the layoff process, the plaintiff proffered testimony that his supervisor
had given younger employers higher evaluations in order to increase their salaries
and encourage them to stay with the company. Id. at 1354. For the purposes of
summary judgment, we assumed that the evaluations played a role in the layoff
process. As the district court, we assumed that the plaintiff could establish a prima
facie case of discrimination. We then rejected his arguments as to why the
employer’s legitimate non-discriminatory reason for layoff was pretextual. The
plaintiff argued that “comments by various USBI employees demonstrate a
corporate culture conducive to age discrimination.” Id. at 1355. He also pointed
to comments of a manager, Frank Batty, but conceded he did not participate in the
decision to terminate him. The plaintiff also asserted that another manager had
suggested that “the layoffs were aimed at the employees who were more secure
and did not have young children in school.” Id. Again, however, we noted that
17
this manager was not a decisionmaker. As such, we did not accept the comments
of either manager as to be even circumstantial evidence of discrimination. Id.
Similarly, we find that Rowell has not proffered any evidence to show that
Gillis’ statements reflect any policy of BellSouth, and since Gillis was not a
decisionmaker with respect to Rowell, his statements cannot demonstrate
discriminatory intent. See Steger v. General Electric Co., 318 F.3d 1066, 1079
(11th Cir. 2003) (“statements made by nondecisionmakers or statements made by
decisionmakers unrelated to the decisional process” do not demonstrate
discriminatory intent) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277
(1989) (O’Connor, J., concurring)).
Under Williams, Rowell would have to show that BellSouth either (1)
consciously refused to consider retaining or relocating a plaintiff because of his
age, or (2) regarded age as a negative factor in its actions. Clearly, Rowell cannot
show that BellSouth refused to consider relocating him. Robitzsch and Durel both
informed employees that if enough individuals accepted voluntary early
retirement, jobs would become available in other areas of the company. Rowell
does not dispute that he would have been eligible and that no one at BellSouth
informed him he would not be able to apply for those positions. Next, as
discussed above, none of the other evidence pointed to by Rowell is sufficient
18
evidence from which a reasonable jury could conclude that BellSouth regarded
age as a negative factor during the reduction in force.
Based on the foregoing, we conclude that Rowell has not presented any
evidence “from which a factfinder might reasonably conclude that the employer
intended to discriminate in reaching the decision at issue.” Williams, 656 F.2d at
129.
In any event, we would also affirm the district court’s order finding that
Rowell could not establish he was constructively discharged from his position. In
Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975),
we adopted the standard for determining whether an employee has been
constructively discharged from the National Labor Relation Board’s constructive
discharge doctrine. There, the plaintiff resigned after learning that she was
expected to attend mandatory meetings that began with a short religious talk and
prayer delivered by a minister. We stated that the “general rule is that if the
employer deliberately makes an employee’s working conditions so intolerable that
the employee is forced into an involuntary resignation, then the employer has
encompassed a constructive discharge and is as liable for an illegal conduct
involved therein as if it had formally discharged the aggrieved employer.” Id. at
144 (citing NLRB v. Brennan’s Inc., 366 F.2d 560 (5th Cir. 1966)); see also
19
Calcote v. Texas Educational Foundation, Inc., 578 F.2d 95 (5th Cir. 1978)
(applying same standard to race discrimination claim); Bourque v. Powell
Electrical Manufacturing Co., 617 F.2d 61 (5th Cir. 1980) (in equal pay sex
discrimination claim, referring to Young and holding that constructive discharge
occurs where “working conditions would have been so difficult or unpleasant that
a reasonable person in the employee’s shoes would have felt compelled to
resign”).
In Downey v. Southern Natural Gas Company, 649 F.2d 302 (5th Cir. Unit
B June 1981), we addressed for the first time the issue of constructive discharge in
the context of a job elimination age discrimination suit. There, the plaintiff, a
sixty-one-year-old longtime employee, had sought a transfer to a new facility. He
did not receive the job but later learned that a thirty-three-year-old with only three
years’ experience had been selected. The plaintiff testified that the personnel
director informed him he had not been chosen because he would only be at the
facility for a few years before a replacement would have to be trained due to the
plaintiff’s advanced age. The personnel director also informed the plaintiff that
“the company did not have anything else for him to do” and “he was in danger of
being discharged because the company did not want to keep him around until the
mandatory retirement age of seventy.” Finally, he was told he would lose his
20
stock benefits if he were discharged by the company. Rather than risk the loss of
these benefits, the plaintiff requested and was granted early retirement. Id. at 303.
The plaintiff then filed suit under the ADEA, contending that he had been
constructively discharged. Reversing the district court, we found that the test for
constructive discharge is “whether a reasonable person in the employee’s position
would have felt compelled to resign.” Id. at 305. Because the plaintiff asserted
that “his superior specifically advised him that he might be discharged, with a
consequent loss of benefits,” we found that the claim of constructive discharge
should have been presented to the jury. Id.
Because Downey addresses constructive discharge in the context of a job
elimination age discrimination claim, it is more apt to the instant case than Young.
However the doctrine is stated, it is still rooted in the notion that the discharge is
the product of intolerable conditions. The holding in Downey, however, does not
control Rowell’s case as the facts in Downey differ in substantial ways. Most
significantly, there was no reduction in force program in Downey. Thus, unlike
the plaintiff in Downey, there is no evidence at all to show that Rowell was
“singled out” for retirement. Furthermore, unlike the plaintiff in Downey, here,
Rowell was never told “the company did not have anything else for him” or that
BellSouth wanted to discharge him because it “did not want to keep him around
21
until the mandatory retirement age of seventy.” Moreover, the only potential loss
Rowell would face was receiving $61,500 in severance benefits as opposed to
$91,500, while the plaintiff in Downey was told he would lose all of his stock
benefits were he to be discharged rather than resign.
The Fifth Circuit did expound upon Downey’s impact in a companywide
reduction in force in Bodnar v. Synpol, Inc., 843 F.2d 190 (5th Cir. 1988). There,
Synpol experienced economic difficulties and informed its employees that it
would be reducing costs through normal retirement, an early retirement program,
and a reorganization to eliminate some jobs. Employees had to meet certain age
and seniority requirements to be eligible for the early retirement program. Of the
twenty-eight employees offered retirement, twenty-one accepted the program. The
seven who did not were still employed by Synpol. Three former employees who
accepted the early retirement offer filed suit under the ADEA contending they had
been constructively discharged.
To support their theory of constructive discharge, the plaintiffs argued that
they were told if they did not participate in the early retirement program and their
job was eliminated, they would not receive any severance pay or benefits. Id. at
192. They were not permitted to speak to other employees about whether to
accept the program and were not provided any information as to how many
22
employees had been offered the program and who had accepted it. Id. Finally, the
plaintiffs contended that presentations concerning the program had been made in a
threatening manner. Id.
The Fifth Circuit, citing Downey, found that the test for constructive
discharge was “whether a reasonable person in the employees’ position would
have felt compelled to resign under the circumstances.” Id. While the court
recognized that an early retirement program, itself, did not create a prima facie
case of age discrimination, the “picture becomes more complicated . . . when the
offer of early retirement irrevocably changes the employee’s status quo” as the
court discussed in Downey. Id. at 193. The Fifth Circuit noted, however, that
Downey is not entirely “apposite [] because it involved a claimed unique
discriminatory act rather than a plan offered to numerous employees.” Id.
An employer’s ‘offer’ of early retirement may create a prima facie
case of age discrimination by constructive discharge if it sufficiently
alters the status quo that each choice facing the employee makes him
worse off. Of course, no individual employee or employee group may
claim constructive discharge where all employees are subject to the
same working conditions.
Id. (citing Vaughn v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir. 1982)).
Despite the fact that Synpol only offered the plan to nonessential, non-
collective bargaining unit employees, the court found that the plaintiffs had not
been “singled out” in the manner that the plaintiff in Downey had been. Id.
23
(noting that Synpol was bound by the terms of a collective bargaining contract
with respect to the other employees). The court also rejected the plaintiffs’
contention that the early retirement program was not voluntary because (1) they
had a short time period to consider the offer, (2) supervisors threatened that “if not
enough employees accepted early retirement and the offeree’s job was eliminated
he would not receive any severance pay or non-pension benefits,” and (3) the tone
and manner of those who explained the plan was intimidating. Id. Rather, the
court found that “[n]one of these factors, taken singly or cumulatively, constitutes
objective evidence that working conditions had become so intolerable as to force
[] resignation.” Id.
Specifically, the court held
[t]hat risk inhered in eligible employees’ failure to accept the [early
retirement program], the risk that their jobs might be eliminated
because of economic pressure on the company, is likewise
insufficient to suggest age discrimination. The element of risk
distinguishes this case somewhat from the no-lose early retirement
plan characterized in Henn [v. National Geographic Society, 819 F.2d
824 (7th Cir. 1987)], but [plaintiffs’] risk, if they stayed on, would be
shared by all remaining employees of Synpol.
Id. at 194.
Similarly, in Vega v. Kodak Caribbean, Ltd., 3 F.3d 476 (1st Cir. 1993), the
First Circuit reviewed Kodak’s decision to downsize their operations in Puerto
Rico through a voluntary separation program. Kodak informed employees that if
24
not enough individuals selected the voluntary separation, the company would be
forced to reassign or furlough employees. Id. at 478. Two employees who
accepted the voluntary separation later filed suit alleging age discrimination. Id.
The plaintiffs attempted to demonstrate that their only choice was early retirement
or discharge.
The court found that three factors reduced the seeming lack of choice in
these two options: (1) Employees were notified that a sufficient number of takers
would obviate the need for involuntary separation, (2) the employer did not
indicate which employees would be terminated should that step prove necessary,
and (3) the employer did not threaten to treat harshly anyone selected for
involuntary termination. Id. at 480-81. Thus, the First Circuit rejected plaintiffs’
argument, holding that “[m]ere 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.” Id.
at 480. To show that the early retirement offer was 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.” Id. Constructive discharge occurs “when the offer presented
was, at rock bottom, a choice between early retirement with benefits or discharge
25
without benefits, or, more starkly still, an impermissible take-it-or-leave-it choice
between retirement or discharge.” Id. (quotation and citation omitted).
This court has not addressed constructive discharge in any sort of
systematic way in the context of a reduction in force to be accomplished in part by
offering economic incentives to any covered employee who resigns. As noted, the
doctrine of constructive discharge enables an employee who has resigned to
demonstrate that he suffered an adverse employment action by showing that the
resignation was an involuntary response that was the product of intolerable
working conditions – that is that he had only a choice between retirement and
discharge.
Downey’s reasonable man test is imprecise in a case where a fifty-two-year-
old employee is offered a severance package of a year and one-half’s salary plus
the present value of his pension plan. Such a man may well think that the only
reasonable response is to resign and take the package, but the motivation is purely
economic. The earliest formulations of the doctrine of constructive discharge,
however, have always required a showing that the resignation be the product of
intolerable or very unpleasant working conditions apart from the influence of any
additional economic benefit offered by the employer in which the employee had
no vested right. See, e.g., Young, 509 F.2d 140 (finding constructive discharge
26
where employee resigned rather than attend mandatory company meetings that
began with prayer). The Downey formulation on its face would permit the use of
what is economically compelling to be conflated with the calculus of the
likelihood that he can maintain the status quo – that he may remain employed.3
The possibility of employment, as will be shown below, is the germane question in
a determination of constructive discharge on facts such as these.
Though taking somewhat different approaches, the cases teach that where
loss of a job is highly likely if the employee does not take the severance package,
then a constructive discharge may be proven if it is also shown that the employee
would have kept a job with the company and declined the severance package if
given a choice. See, e.g., Scott v. Goodyear Tire & Rubber Co., 160 F.3d 1121,
1128 (6th Cir. 1998) (allowing constructive discharge claim to proceed where
plaintiff proffered evidence that employer’s offer of layoff with possibility of
recall was illusory).
We know that in a reduction-in-force situation, some employees are going
to lose their jobs. As a result, not everyone is in as good a position as the status
quo regardless of the choices presented to them.
3
If this were the law, the lesson for employers is that they should offer no extra-economic
incentive in connection with reductions in force.
27
In order to show constructive discharge, however, the plaintiff must show
that the situation was so “intolerable” that he had “no choice” but to take early
retirement. The fact that one of the possible outcomes is that he would lose his job
alone is not sufficient to establish the intolerable conditions sufficient to justify a
finding of constructive discharge because the possibility that a plaintiff may not
remain employed is not by itself enough to place a reasonable person in the
position of “quit or be fired.” See generally Earley v. Champion Int’l Corp., 907
F.2d 1077, 1083 (11th Cir. 1990) (the “essence of a RIF is that competent
employees who in more prosperous times would continue and flourish at a
company may nonetheless have to be fired”) (quotation and citation omitted);
Vega, 3 F.3d at 480 (constructive discharge occurs “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” but mere fact that some employees might be
furloughed if not enough accepted voluntary retirement was not sufficient)
(emphasis added).
28
Rowell was never at the point where his only choices are between
termination and resignation. In the beginning his options were:
1. Keep his present job or seek other openings within BellSouth, or
2. Resign with a severance package of 150% of his salary and his
pension in lump sum.
After his conversation with Robitzsch, a reasonable person would feel less sure of
keeping his present position, but it was still a possibility that one member of the
universe might take the severance package, obviating altogether the need to move
Rowell out of his present position. There was also the opportunity to seek any
jobs that opened up, including some in Mississippi, the creation of which was not
dependent on the success of the “buy-out” proposal. The choices for Rowell never
get any more unpleasant; he is never in a position without an opportunity to
continue his status quo employment with BellSouth.4 Until it becomes evident
that there is no objectively reasonable opportunity to remain employed, he cannot
as a matter of law contend that he has been discharged.
Rowell was faced with a choice, a difficult one to be sure, but he chose to
accept the maximum severance benefit over the possibility of remaining employed.
That was a choice Rowell made with full information and cannot be described as a
4
There is no question in this case about other possible positions being undesirable.
29
take-it-or-leave-it situation. An employee who accepts the severance package
rather than wait to see if he can remain employed cannot claim that he was
constructively discharged. See Johnson v. Runyon, 137 F.3d 1081, 1082 (8th Cir.
1998) (rejecting constructive discharge claim where plaintiff “chose to accept an
early retirement package rather than to wait and see what positions would be
available following the reorganization”).
Because Rowell was not faced with an impermissible take-it-or-leave-it
choice between retirement or discharge, we find that he cannot establish an
adverse employment action of constructive discharge and his ADEA claim fails.
Rowell has not established a prima facie case of employment discrimination, and
thus, we need not consider BellSouth’s alternative argument that Rowell failed to
demonstrate that its legitimate, nondiscriminatory reasons for the competency
rating were pretextual.
For these reasons, we AFFIRM the district court’s grant of BellSouth’s
motion for summary judgment.
30
CARNES, Circuit Judge, concurring:
I concur in the Court’s decision affirming the grant of summary judgment
and join the part of its opinion explaining that Rowell failed to create a genuine
issue of material fact that his ranking for reduction in force purposes was the result
of age discrimination. The issue of whether Rowell’s resignation amounted to a
constructive discharge so as to satisfy the adverse employment action requirement
is one that I would not reach, and I do not join in that alternative holding.
31