                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2273
                                    ___________

Rodney P. Fischer,                       *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Andersen Corporation,                    *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 13, 2006
                                 Filed: April 13, 2007 (Corrected: 05/02/2007)
                                  ___________

Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Rodney Fischer appeals from the district court’s1 summary judgment in favor
of his employer, Andersen Corporation (“Andersen”), on his claim that Andersen,
with the intention of interfering with his rights to future pension benefits, forced him
to take early retirement in violation of section 510 of the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1140. We affirm.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                           I.

       Fischer joined Andersen in 1971 to work at its door production facility. From
early 1990 until his retirement in 2003, he served in an engineer support role. While
he had consistently received satisfactory job performance reviews through 2002,
notes in a May 21, 2001, review point out that Fischer was uncomfortable with
assignments that required quick responses and that he had difficulties with
coordination, implementation, and follow-up projects. They also specified, among
other things, that his communication skills were



       In early 2002, the plant had not been satisfying its customers, and the door plant
engineers had a poor record of delivering projects on time and on budget. Andersen
appointed Mike Midby to the position of engineering manager for Andersen’s door
plant, with instructions to improve the skills and overall performance of the
engineering team. Fischer contends, though, that “the rumor was that Mike Midby
was coming . . . to start forcing out older engineers.”

       Midby repeatedly told the entire department that he had higher performance
expectations than did his predecessors and that he was “raising the bar.” In the
summer of 2002, Midby told Fischer that if he wanted to remain in his then-current
employment classification category of “Engineer I,” he would have to begin taking
direct responsibility for projects and no longer work in a support capacity. Fischer
embraced the opportunity and took on project leader responsibilities – a role that he
had not been involved in “in some time.”

       On January 22, 2003, Midby met with Fischer about an unsatisfactory job
performance review. The review noted that Fischer’s communication and
management skills were deficient for his new role as project leader. It further noted
that as a result of Fischer’s poor performance, another Andersen employee had to set

                                          -2-
up an emergency team to complete one of Fischer’s projects. Fischer conceded that
the other employee had not treated him unfairly. As a result of the review, Midby told
Fischer of his intention to put him on a Performance Improvement Plan (“PIP”).2
After this conversation, Fischer allegedly complained of a threat of termination and
of age discrimination to Bruce Lundeen, Andersen’s human resource specialist.
Lundeen, however, recalls only that Fischer had been upset about the review and
criticism.

        On February 6, 2003, Fischer met with Midby and Jim Moulton, Midby’s
supervisor, to discuss his job performance. Prior to this meeting, Fischer allegedly
learned that a co-worker, Wayne Schmidt, had avoided a PIP by giving Moulton and
Midby a retirement date. Accordingly, at the meeting, Fischer volunteered to them
that in 1988 he and his wife had decided that he would retire in 2003. He additionally
stated that his current plan was to retire as early as August 2003 and no later than
December 31, 2003. Because of the time and effort associated with creating and
implementing a PIP, Midby testified that it would not be sensible to begin a PIP
process in light of Fischer’s imminent retirement. Instead, Fischer was to make
improvements without formal oversight and would be placed on a PIP only if he did
not retire by August and did not improve. Despite testifying that it was fair of Midby
and Moulton to request during the February meeting that he improve his work
performance, Fischer alleges that the PIP meeting was orchestrated by Midby to force
Fischer to give him a retirement date. He also asserts that Midby admitted as much
at the time.




      2
       Under a PIP, an employee must demonstrate improvement in the areas
specified by the supervisor within thirty days. Should the employee fail to do so, he
may be reassigned or terminated. Should the employee succeed in improving,
additional improvement goals may be imposed under subsequent PIPs for up to sixty
additional days.

                                         -3-
       On May 2, 2003, Midby and Fischer met again because Midby wanted to
discuss Fischer’s continued lack of performance and the possible imposition of a PIP.
Fischer contends that Midby threatened him with a PIP if Fischer did not retire in
August. According to Midby’s notes of the meeting, however, Midby indicated that
he focused on Fischer’s performance and discussed imposing a PIP despite Fischer’s
plan for retirement. After the meeting, Midby decided that a PIP would not be
effective given Fischer’s attitude and beliefs about his work duties and
responsibilities. He therefore recommended to Andersen that Fischer be given the
choice of termination or immediate retirement.

       After consulting with the head of human resources, Midby eventually changed
his mind and agreed to give Fischer another chance. On June 9, 2003, Midby and
Moulton presented Fischer with a PIP specifying the general categories of project
work, communication, and general work habits as areas requiring improvement. The
plan also outlined specific and approachable sub-areas under each of these categories
for Fischer to work on. Fischer claimed in his affidavit that the PIP contained
impossible demands, but he testified that the objectives set forth in the PIP were
reasonable. During the meeting, which Fischer secretly tape recorded, Fischer asked
several times whether he could avoid the PIP by setting a specific retirement date.
According to the recording, Midby answered in the negative and repeatedly indicated
that the performance issues and Fischer’s potential retirement were entirely separate.
Following the meeting, Fischer felt ill and left work. He was subsequently treated by
a physician and was placed on short-term disability due to stress and anxiety. He
never returned to work and formally retired on December 5, 2003.

       Fischer testified that he chose to retire in order to retain his existing health plan
instead of accepting a new health plan that would otherwise replace his current plan
in January of 2004. Despite this admission, he also asserts that he was constructively
discharged. He alleges that on numerous instances various authoritative employees
at Andersen misrepresented facts to him by stating that he would permanently lose his

                                            -4-
medical benefits should he be terminated for failing a PIP. Furthermore, he notes that
Andersen had not made available any written pension plan summary, as required by
statute, that would have definitively clarified the issue. Because he considered the
requirements of the PIP impossible to accomplish, Fischer contends that Andersen
was effectively offering him a choice between voluntary early retirement with reduced
pension benefits that included health benefits, and inevitable termination with the
same reduced pension benefits but stripped of the health insurance. Given these
circumstances, Fischer argues that he was constructively discharged.

       The district court granted Andersen summary judgment on Fischer’s claim that
Andersen failed to disclose pension plan information in violation of ERISA, finding
that the claim had not been pled.3 It also granted Andersen summary judgment on
Fischer’s interference with pension benefits claim, holding that Fischer had not made
a prima facie case of interference and, in the alternative, even if he had done so,
Fischer lacked evidence of pretext in light of Andersen’s justification for placing
Fischer on a PIP.

                                          II.

      We review the district court’s grant of summary judgment de novo. Woodland
v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 841 (8th Cir. 2002). When the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is entitled to judgment as a matter


      3
       Fischer does not appear to have appealed the district court’s summary
judgment on the ERISA reporting claim, even though his arguments in favor of using
evidence of Andersen’s misreporting for purposes of generating issues of material fact
on his section 510 claim include references to the pleading requirements under the
Federal Rules of Civil Procedure. We note that even had Fischer appealed the issue,
we would have agreed with the district court that Fischer had not properly raised the
reporting claim.

                                         -5-
of law, summary judgment is appropriate. FED. R. CIV. P. 56(c); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The court should
grant summary judgment if any essential element of the prima facie case is not
supported by specific facts sufficient to raise a genuine issue for trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986).

         Under section 510 of ERISA, it is unlawful for an employer to discharge a
participant in an employee benefit plan “for the purpose of interfering with the
attainment of any right to which such participant may become entitled under the plan
. . . .” 29 U.S.C. § 1140 (2006). To prevail under his ERISA interference claim, then,
Fischer must show that (1) Andersen subjected him to an adverse employment action,
(2) he was likely to receive future benefits, and (3) there was a causal connection
between the adverse action and the likelihood of future benefits. Kinkead v.
Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir. 1995).

       Fischer has not introduced facts sufficient to demonstrate an adverse
employment action. He argues that he satisfied this element by providing evidence
supporting his conclusion that he was constructively discharged. We disagree.
Constructive discharge is implicated only where an employer creates conditions so
intolerable that a reasonable person would resign. West v. Marion Merrell Dow, Inc.,
54 F.3d 493, 497 (8th Cir. 1995) (noting also that the standard is objective); Phillips
v. Taco Bell Corp., 156 F.3d 884, 890 (8th Cir. 1998) (same). An employee is not
constructively discharged when an employer merely implements a PIP. See, e.g.,
Givens v. Cingular Wireless, 396 F.3d 998, 998-99 (8th Cir. 2005) (per curium)
(affirming the district court’s finding that there was no basis for constructive discharge
where plaintiff was placed on a PIP); Agnew v. BASF Corp., 286 F.3d 307, 310 (6th
Cir. 2002) (“criticism in performance reviews and institution of performance
improvement plans, alone, do not constitute objectively intolerable conditions”); Rossi
v. Alcoa, Inc., 129 Fed. App. 154, 158 (6th Cir. 2005) (same). Nor does a threat of



                                           -6-
discharge, in and of itself, create conditions so intolerable that a reasonable person
would resign. Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir. 1997).

      Fischer contends that his employment conditions were made intolerable under
the PIP not just because it was imposed on him and carried a risk of termination, but
because (1) he believed that Andersen imposed a PIP with terms that made
termination due to failure inevitable, and (2) he had been informed that he and his
wife would permanently lose their otherwise vested health insurance pension benefits4
should that happen.5 Even were we to assume, arguendo, that what he describes


      4
        Viewing the evidence in the light most favorable to Fischer, we must assume
that Fischer’s belief concerning the potential loss of medical benefits was reasonable.
Both Midby and the Andersen Human Resource department purportedly told Fischer
that he stood to lose his medical benefits should he be terminated for failure to
succeed in a PIP. Furthermore, as Fischer notes, a written summary of his pension
plan was not accessible to him. Even though his ERISA reporting claim was
insufficiently pled, the same evidence for that issue was also relevant to Fischer’s §
510 claim.       Because the evidence was elicited in “depositions, answers to
interrogatories, and admissions on file,” it should therefore be considered for the
purpose of ascertaining whether it creates a genuine issue of material fact. FED. R.
CIV. P. 56(c).
      5
        Fischer also cites as relevant his frustration that work previously considered
satisfactory was suddenly considered poor, his belief that Midby was implacable and
would not be satisfied no matter what he did, and his demoralization at seeing his
colleagues demoted. Apart from the question whether Fischer’s discomfort was
justified — there is evidence suggesting that, for example, skill-based weaknesses
were noted even in earlier satisfactory reviews — employees under a new manager
trying to turn around a poorly performing department are routinely faced with such
issues. Nothing in the evidence suggests to us that these considerations created an
environment intolerable to a reasonable employee. See Tidwell v. Meyer’s Bakeries,
Inc., 93 F.3d 490, 496 (8th Cir. 1996) (citing Carter v. Ball, 33 F.3d 450, 459 (4th Cir.
1994) (“Dissatisfaction with work assignments, a feeling of being unfairly criticized,
or difficult or unpleasant working conditions are not so intolerable as to compel a
reasonable person to resign.”)).

                                          -7-
would amount to a constructive discharge provided he had evidence supporting each
point, he has not introduced any evidence demonstrating that the PIP was setting
Fischer up to fail,6 or indicating that the PIP requirements were anything but
reasonable.7

       A party may not create a factual dispute by contradicting his own testimony.
Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365 (8th Cir. 1983).
Setting aside the discrepancy between Fischer’s stated reason for resigning and his
current position alleging constructive discharge, Fischer’s contradictions go still
further. Though Fischer stated in his affidavit that the requirements of the PIP were
impossible to achieve, he admitted in his deposition that the PIP requirements were
largely fair and in conformance with what one would expect from an engineer. Those
instructions within the PIP that he believed to be unfair involved either ambiguous
language subject to interpretation or performance-weighing metrics left undefined –
neither of which represents even inferential evidence that the PIP set him up for




       6
         Even if another employee may have received a facially impossible to perform
PIP, no evidence presented by Fischer generates an inference that an otherwise
reasonable PIP should similarly be considered nearly impossible to fulfill. See Wilson
v. Int’l Bus. Mach. Corp., 62 F.3d 237, 241 (8th Cir. 1995) (noting that to withstand
summary judgment, the non-moving party “must substantiate his allegations with
sufficient probative evidence [that] would permit a finding in [his] favor based on
more than mere speculation, conjecture, or fantasy.” (alterations in original) (quoting
Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994))).
       7
        In fact, as the district court points out, Fischer himself testified that he resigned
in order to keep his current medical insurance package and to avoid it from being
replaced by the new medical insurance package otherwise taking effect in January
2004. This admission undermines Fischer’s assertion that he resigned in response to
intolerable conditions, instead of resigning as a matter of personal discretionary
choice.

                                            -8-
failure.8 Instead of asking for clarification so that he could accurately assess whether
the few ambiguous PIP tasks about which Fischer had concerns were surmountable
and realistic, Fischer simply assumed the worst and relied on speculation and rumor
to inform his fatalistic interpretation. See West, 54 F.3d at 498 (“Part of an
employee’s obligation to be reasonable is an obligation not to assume the worst and
not to jump to conclusions too fast.” (citation omitted)). Furthermore, “[a]n employee
who quits without giving [his] employer a reasonable chance to work out a problem
has not been constructively discharged.” Phillips, 156 F.3d at 890 (internal quotation
marks and citation omitted).

       We conclude that, even viewed in the light most favorable to him, the evidence
submitted by Fischer would not support a finding that a reasonable employee placed
on such a PIP would have considered failure, subsequent termination, and permanent
loss of medical benefits so likely that resignation was the only option. Accordingly,
in the absence of an adverse employment action, Fischer has not made a prima facie
showing of intentional interference with his pension benefits.9

      The judgment is affirmed.
                      ______________________________


      8
       For example, the PIP mentioned under the “Communication” heading that
people have different preferred methods of communication. Because of this, the PIP
goes on to state that “you may need to invoke methods other than e-mail.” Fischer
interpreted this language as requiring him to communicate effectively with floor
personnel without ever using E-mail – something he believes to be an impossible feat.
Under the objective standard applicable for constructive discharge determinations, we
see no reason to believe that a reasonable employee would have adopted Fischer’s
interpretation.
      9
        We also note that had Fischer made a prima facie showing of interference, his
claim would still have failed. Even if the evidence might suggest that Andersen
avoided targeting the youngest of workers for PIPs, Fischer’s argument that the
targeting pattern represents an intent to interfere with retirement benefits is undercut
by the significant presence of individuals targeted for PIPs who were many years
away from qualifying for even early retirement benefits.

                                          -9-
