
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
