                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 21, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    M ICH AEL SAV ILLE,

                Plaintiff-Appellant,

    v.                                                  No. 05-4058
                                                 (D.C. No. 2:00-CV-681-DB)
    INTER NATIONAL BUSINESS                               (D. Utah)
    M A CH IN ES C OR PO RA TIO N ,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




         Plaintiff-Appellant M ichael Saville appeals from a summary judgment in

his case for retaliatory constructive discharge in violation of the Fair Labor

Standards Act (FLSA). W e affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                  B ACKGROUND

      Saville worked for International Business M achines Corporation (IBM ) as a

senior customer engineer. He was “primarily responsible for the post sale

maintenance of IBM equipment in customer accounts,” which required that he

provide “technical assistance and advice to less experienced personnel” and

“develop[ ] positive relationships w ith customer management and staff.” A plt.

App. at 275. “Saville was not a perfect employee,” however, as he had problems

mentoring and communicating with his peers. Aplt. Br. at 8.

      In 1997, Vickie Fullmer became Saville’s supervisor. Toward the end of

the year, Saville began voicing his concerns that IBM ’s “crackdown on overtime

was leading his peers to work overtime without recording it and without being

paid for it,” creating a morale problem. Id. at 11; see also Aplt. App. at 75A. In

July 1998, Fullmer met with Saville for an interim performance evaluation after

some of Saville’s peers complained that he was difficult to work with and a

customer complained of disparaging treatment. A plt. A pp. at 142-43, 205.

During the meeting, Fullmer revealed some of the complaints and accused Saville

of having a “bad attitude.” Id. at 88-89. Afterward, Saville submitted a “Speak

Up” e-mail to IBM ’s human resources department, accusing Fullmer of “dropping

my performance” rating because Saville’s group had criticized her leadership in a

survey. Aplee. Supp. App. at 192; see also Aplt. Br. at 13. In the e-mail, Saville




                                        -2-
admitted, “I think I do have an attitude problem as a result of some of my

manager’s action and lack of action . . . .” Aplee. Supp. App. at 192.

      In September 1998, Saville met with Fullmer’s supervisor, Brian M yers,

and told him that some customer engineers were “grumbling about working

overtime and not recording it and getting paid for it because of how it’s being

micro-managed.” A plt. App. at 106. Saville further complained that Fullmer’s

leadership negatively affected morale. Following an investigation, M yers told

Saville that “his attitude, leadership, mentoring and support for M s. Fullmer w ere

unacceptable and that his attitude problem w as causing customer complaints.”

Id. at 149. Saville was given the option of being placed on a performance

improvement plan or retiring from IBM with a severance package.

      During an October 5, 1998 meeting, Fullmer told Saville that the

improvement plan would be thirty days long, id. at 121, that it would gage

performance, leadership, peer support, management support, teamw ork and

customer satisfaction, id. at 123, and that if she received one complaint he would

fail the plan and be fired, id. at 121. Saville was given thirty days to decide

which option to choose. Id. at 123. On October 30, 1998, Saville notified IBM

that he chose retirement, effective the next day.

      In August 2000, Saville sued IBM under the FLSA , alleging that he was

constructively discharged for “voic[ing] his concerns regarding IBM ’s practices

in recording and paying overtime.” Id. at 13. The district court granted IBM

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summary judgment, ruling, among other things, that Saville suffered no adverse

employment action. Saville appeals.

                                     D ISCUSSION

                          I. Summary Judgment Standards

         Summary judgment is appropriate “if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is not

“genuine,” and summary judgment will be w arranted, if no reasonable jury

viewing the evidence could return a verdict for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). W e review “a grant of summary

judgment de novo with an examination of the record and all reasonable inferences

that might be drawn from it in the light most favorable to the non-moving party.”

Palladium M usic, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir.

2005).

                                    II. The FLSA

         Among other things, the FLSA prohibits employers from “discharg[ing] or

in any other manner discriminat[ing] against any employee because such

employee has filed any complaint . . . under or related to [the FLSA].” 29 U.S.C.

§ 215(a)(3). This “section protects conduct based on a good faith, although

unproven, belief that the employer’s conduct is illegal,” and “applies to the

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unofficial assertion of rights through complaints at work.” Love v. RE/M AX of

Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984).

      W e analyze FLSA-retaliation claims under the burden-shifting framew ork

of M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pacheco v. Whiting

Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004). Under that framew ork, the

employee must first establish a prima facie case of retaliation. Id. If the

employee succeeds, the employer must offer a legitimate, non-retaliatory reason

for the adverse employment action. Id. Then, “the burden shifts back to the

employee to show [that] genuine issues of material fact exist regarding whether

the employer’s proffered reason is unworthy of credence.” Id. at 1207. W e

conclude that Saville’s retaliation case fails at the framew ork’s initial stage.

      An employee cannot establish a prima facie case of retaliation without an

adverse employment action. See id. at 1206. Saville’s retirement from IBM

would qualify as an adverse action only if IBM deliberately made or allowed

Saville’s working conditions to become so intolerable that he had no other choice

but to retire. See M acKenzie v. City & County of Denver, 414 F.3d 1266, 1281

(10th Cir. 2005). In other words, Saville’s retirement would have to amount to a

constructive discharge, and would depend upon whether a reasonable person

would view the conditions at IBM as intolerable, not upon Saville’s subjective

view of those conditions. Id.




                                          -5-
      Saville argues that a triable issue of fact exists as to whether a reasonable

person would have chosen retirement over the performance improvement plan,

because (1) he had received a negative interim evaluation; (2) his complaints

against Fullmer were not seriously considered, and instead, he was accused of

being the problem; (3) M yers told him, during their September 1998 meeting,

“I want you out” of IBM , Aplt. App. at 118 (quotation omitted); 1 and (4) M yers

said the duration of the improvement plan would be ninety days, but Fullmer

shortened it to thirty days, “did not put anything on paper,” and said one

complaint would result in termination, Aplt. Br. at 39. 2 W e agree with the district

court that no reasonable jury could find these conditions so intolerable as to

render Saville’s retirement involuntary. The inquiry is not whether the conditions

at IBM were “difficult or unpleasant,” but whether, at the time of Saville’s

retirement, IBM did not allow him “the opportunity to make a free choice



1
       Saville ignores the full extent of M yers’ remarks. At his deposition, Saville
testified that M yers said, “‘I want you to leave IBM . W ell, you can accept the
[performance improvement plan].’” Aplt. App. at 118. In any event, an
employer’s subjective intentions regarding the employee have no bearing on
whether there was a constructive discharge. Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005).
2
       Saville also states that Fullmer and M yers “transformed [a] customer’s
failure [to perform its obligations] into a customer complaint against M r. Saville.”
Aplt. Br. at 38. But Saville fails to cite any part of the record showing such a
transformation. Indeed, the customer submitted an affidavit testifying that it had
asked IBM to remove Saville from a project because he “was obnoxious and acted
inappropriately” and “was not treating us properly and with respect.” Aplt. App.
at 205.

                                         -6-
regarding his employment relationship.” Exum v. U.S. Olympic Comm., 389 F.3d

1130, 1135 (10th Cir. 2004) (quotation omitted). Other courts have held “that

criticism in performance reviews and institution of performance improvement

plans, alone, do not constitute objectively intolerable conditions.” Agnew v.

BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002); accord Givens v. Cingular

Wireless, 396 F.3d 998, 998 (8th Cir. 2005). W e agree. Cf. Lybrook v. M embers

of Farmington M un. Schs. Bd. of Educ., 232 F.3d 1334, 1339 (10th Cir. 2000)

(placing employee on a professional development plan and requiring employee to

meet weekly with her superior was not an adverse employment action in her First

Amendment retaliation case). Furthermore, we have previously indicated that an

employer’s offer of an alternative to quitting is not consistent with constructive

discharge. See, e.g., Exum, 389 F.3d at 1136. Saville could have remained at

IBM and undertaken the performance improvement plan. Indeed, Saville testified

at deposition that he had placed at least six subordinates on ninety-day

improvement plans and they all succeeded, although some “fell off” afterw ard.

Aplt. App. at 127. 3 Finally, Saville was given thirty days in which to consider



3
       W e are not persuaded by Saville’s summary contention that a thirty-day
plan is somehow more onerous than a ninety-day plan. Nor do we attribute any
weight to Saville’s assertion that, if he had chosen the improvement plan, he
would have remained subject to termination “a year or more after the successful
completion of the plan” if he violated any of the plan’s criteria, Aplt. Br. at 35.
M ere speculation is insufficient to withstand summary judgment. Setliff v. M em ’l
Hosp. of Sheridan County, 850 F.2d 1384, 1393 (10th Cir. 1988); see also Agnew,
                                                                        (continued...)

                                         -7-
remaining with IBM and was verbally notified of the criteria under which he

would be judged if he elected to remain. The totality of the circumstances

indicates, as a matter of law, that Saville’s retirement was voluntary.

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court


                                                     M ary Beck Briscoe
                                                     Circuit Judge




3
 (...continued)
286 F.3d at 310 (“An employee who quits a job in apprehension that conditions
may deteriorate later is not constructively discharged. Instead, the employee is
obliged not to assume the worst, and not to jump to conclusions too fast.”
(quotation omitted)).

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