
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1312                                 HARVEY R. GREENBERG,                                Plaintiff, Appellant,                                          v.                               UNION CAMP CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Douglas G.  Moxham, with whom  Geoffrey R. Bok and  Lane & Altman,            __________________             _______________      _____________        were on brief for appellant.            John  T.  Murray,  with  whom Jeffrey  K.  Ross,  Seyfarth,  Shaw,            ________________              _________________   ________________        Fairweather  &  Geraldson, John  A. Nadas,  Kevin  P. Light,  Karen L.        _________________________  ______________   _______________   ________        Cartotto, and Choate, Hall & Stewart, were on brief for appellee.        ________      ______________________                                 ____________________                                  February 17, 1995                                 ____________________                      STAHL, Circuit Judge.   Plaintiff-appellant  Harvey                      STAHL, Circuit Judge.                             _____________            Greenberg appeals from a directed verdict granted in favor of            defendant-appellee  Union  Camp   on  Greenberg's  claims  of            wrongful   termination   due    to   age   and    retaliatory            discrimination.     Because   Greenberg  failed   to   adduce            sufficient  evidence to  support  a  finding of  constructive            discharge or retaliatory motive, we affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                      In  October  of  1971,  Harvey  Greenberg,  at  age            thirty-five,  began  working as  a  sales representative  for            Union Camp.1   Union Camp hired Greenberg  primarily to cover            the  Maine sales  territory  for  its Dedham,  Massachusetts,            plant.     Union  Camp  manufactures  (and   Greenberg  sold)            corrugated cardboard boxes for industrial and commercial use.            Throughout  his career  at Union  Camp, Greenberg  resided in            Swampscott, Massachusetts.                      When Union Camp  hired Greenberg, it  had virtually            no existing customer base  in the State of Maine.   Greenberg            initially spent one week a month prospecting for new accounts            in  Maine and  the  rest of  the  month selling  to  existing                                            ____________________            1.  In  1971,  the  entity  that  retained  Greenberg  was  a            subsidiary  of Union  Camp  operating under  the name  Allied            Container.    About  1985,  the  Allied Container  subsidiary            adopted the Union Camp  logo.  For purposes of  this opinion,            we  will refer  to  Greenberg's employer,  whether before  or            after 1985, as Union Camp.                                          -2-                                          2            Massachusetts  customers.   Greenberg,  however, successfully            built up Union Camp's client base in Maine and in short order            concentrated his  sales efforts almost  exclusively in Maine.            Indeed,  Greenberg was primarily responsible for securing the            Maine  client base which was a prerequisite for Union Camp to            open a corrugated container plant in Auburn, Maine.  By 1977,            Union  Camp's  client base  in  Maine  had  grown  such  that            Greenberg's sales territory was narrowed to approximately the            southern half of the State of Maine.2                      Greenberg  increased his  sales  every  year,  from            $190,000 in  1972 to  over $5,400,000 in  1989.   Greenberg's            profit  contribution (roughly  a  measure of  how much  money            Union Camp  earned on  the sales) consistently  compared very            favorably   with    that   of   other   Union    Camp   sales            representatives.    Moreover,  at  least  by  some  measures,            Greenberg successfully sold not only to established accounts,            but  also to new  customers.3  Greenberg  received annual pay            increases with his compensation  rising from about $12,500 in                                            ____________________            2.  By 1977, Greenberg  had essentially discontinued  calling            on any Massachusetts customers.            3.  The  parties disputed Greenberg's performance in securing            and selling new  accounts.  In maintaining  that he performed            well in  this  area, Greenberg  pointed  out that  he  ranked            third,  second and first for  the years 1987,  1988 and 1989,            respectively, in terms of square feet of corrugated cardboard            sold to new accounts.  Union Camp, on the other hand, pointed            to other  measures,  that indicated  whether the  new-account            customers  were  one-time   purchasers  or  became  recurring            customers, which  shed a less favorable  light on Greenberg's            performance.                                          -3-                                          3            1972  to almost  $65,000 in 1989.   In  July of  1990, at his            annual performance review, Greenberg, who like all Union Camp            sales  representatives  worked  on  a salary  rather  than  a            commission basis, received the  largest merit increase of his            career.                      Throughout  most of  his  nineteen  years at  Union            Camp,  Greenberg  called  on  his  Maine  customers  only  on            Tuesdays, Wednesdays and Thursdays.   He attributed this work            schedule,  at least  in part,  to his basic  sales philosophy            that prospective  customers were  generally too busy  for and            unreceptive  to sales pitches on Mondays and Fridays.  During            a   typical  week,   Greenberg  would   leave  his   home  in            Massachusetts  at  5:30  a.m.  on Tuesdays,  meet  his  first            customer in Maine  at 7:00  a.m. and continue  to make  sales            calls  until around  3:00 p.m.,  when he  would check  into a            motel  where he  would  spend Tuesday  and Wednesday  nights.            Often  he  would entertain  clients  on  the company  expense            account during  the evenings.  Wednesdays,  he typically left            his hotel at 8:00  a.m. and would call on customers until the            middle  of the  afternoon.   On  Thursdays starting  sometime            after 8:00 a.m.,  he would visit customers  while working his            way back to  Massachusetts, generally arriving home  sometime            near the middle of the afternoon.                      Early  in his  career,  Greenberg reported  to  the            Dedham,   Massachusetts,  plant   on  Mondays  to   speak  to                                         -4-                                          4            supervisors,  turn  in  expense  reports and  meet  with  box            designers  about  customer  orders.    After Greenberg  began            reporting to the  Maine plant in 1983,  he still periodically            went to the  Dedham plant  to work with  designers until  the            facility closed around  1986.   From 1986 until  he left  the            company,  Greenberg  generally  worked  out of  his  home  on            Mondays  and  Fridays,   completing  paperwork4  and   making            telephone  calls to the  plant and  to customers.   Greenberg            normally finished this work  before noon, usually leaving the            rest of the day for personal matters.  Greenberg periodically            did visit a New Hampshire customer on Mondays.                      In 1987,  Union Camp assigned Gerald  Redman to the            Auburn, Maine, plant as plant manager.  In the summer of 1987            at   Greenberg's  annual  performance   review,  Redman  told            Greenberg that, "[y]our reputation goes all the way  to Wayne            [(Union Camp's  headquarters)],  you don't  work  Monday  and            Friday.  If it ever gets to be a problem, I will be the first            to  tell you about  it."  Bob  Ritter, the Maine  plant sales            manager, testified  that, at this meeting  and at Greenberg's            1988 performance review, Greenberg stated that he intended to            retire at age fifty-five.                                            ____________________            4.  The  paperwork   consisted  of  expense   and  sales-call            reports.   Greenberg  testified  that, for  the last  several            years  of  his career,  he  filled  out identical  sales-call            reports  every other week.  He stated that, though in general            they reflected his activities,  they did not accurately state            on a day-to-day basis the clients he visited.                                         -5-                                          5                      In   November  1989,  Redman  and  Ritter  required            Greenberg  and  the  other  sales  representatives   to  make            presentations regarding their top five new-account prospects.            Redman   was   extremely   dissatisfied    with   Greenberg's            performance   at  his   individual  meeting,   and  Greenberg            described the meeting as "two hours of insults  and threats."            At  one point during the  meeting, Greenberg stated, "I don't            have  to listen to  this garbage anymore,"  and threatened to            walk  out.   At another,  Greenberg commented to  Redman that            there seemed to be  "[a] sword of [D]amocles hanging  over my            head  in my  best sales  year."   To which  Redman responded,            "You'd better  believe it."   Ritter  testified that  at this            meeting he told Greenberg that his three-day schedule was not            satisfactory.   Though Greenberg  maintained that he  was not            ordered  at this  point to  make sales  calls on  Mondays and            Fridays, he  admitted that  his work  schedule may have  been            discussed.  Following the meeting, Greenberg avoided speaking            with Redman and Ritter except as business required.5                        Greenberg asked Ritter to visit some customers with            him in February of 1990.  During the  trip, the two discussed                                            ____________________            5.  Greenberg also testified that his expenses were discussed            during this meeting.  He recalled stating "I never pocketed a            nickel."  Redman replied, "It better be that way."                At trial, Greenberg  admitted that  he often  entertained            individuals  who  were not  Union  Camp  customers and  later            attributed  the  cost of  the  entertainment  on his  expense            reports to actual clients.   Greenberg resolutely maintained,            however, that the expenditures always benefitted Union  Camp,            albeit sometimes indirectly.                                         -6-                                          6            the previous November meeting.  Greenberg testified that they            also discussed Greenberg's own belief that Union Camp's sales            force was  too old.6   He  also admitted  that they  may have            discussed his work schedule and sales philosophy, but he  did            not specifically recall.                        At a  meeting in May 1990,  Ritter asked Greenberg,            who would turn  fifty-four the following July, whether he had            plans  to retire early  at age fifty-five.   Though Greenberg            testified that he had never told anyone at Union Camp that he            intended to retire early,  he admitted that a story  he often            told  about his father might have suggested that he wished to            do  so.7   During  the meeting,  Greenberg  told Ritter  that            there was no way he  could afford to retire early.   Directly            following the meeting, Ritter  informed Redman that Greenberg            did not intend to  retire early.  Redman testified  that this            fact  increased the  need to  do something  about Greenberg's            work schedule.                                            ____________________            6.  Greenberg had  previously  brought  this  point  to  both            Redman  and  Ritter's  attention.   Deposition  testimony  of            Greenberg's  replacement   read  into  the  record  at  trial            established that,  at the  time of the  deposition, three  of            seven  sales representatives  at the  Maine plant  were older            than age forty.  Though not elicited as a fact in Greenberg's            case-in-chief, Redman, who testified  and was present for the            four days of trial, is five years older than Greenberg.            7.  Greenberg's  written  performance reviews  dated February            1989 and February 1990,  include the statement "Retirement in            the   near  future,"   under  a   section  entitled   "Career            Development."  Greenberg neither signed nor saw these reviews            prior to leaving the company.                                         -7-                                          7                      In  July  1990, Ritter  gave  Greenberg  his annual            review, at which he told Greenberg about his raise, which was            the largest of Greenberg's career, and about areas of his job            performance  that needed improvement.  Following the meeting,            Ritter sent  Greenberg a  letter purporting to  summarize the            main points of the  review.  Ritter noted in the  letter that            he  had informed Greenberg that  he must show improvement "in            the immediate future" in areas of "base accounts, new account            development, communication with  management, work  schedules,            expenses  and  communication."    More  specifically,  Ritter            wrote:                      New account penetration  in recent  years                      has been unsatisfactory.   Regardless  of                      base  account  level, new  account focus,                      planning  and  development must  improve.                      Work habits and methods must  be reviewed                      with  action taken to better utilize open                      available  weekly  time  to  achieve  job                      responsibilities.  Not communicating with                      management because of  the difference  of                      opinion is unacceptable, and actions such                      as these cannot occur again.            Greenberg   testified  that   he  could  not   recall  Ritter            counselling him about any significant performance problems in            past reviews.8                                            ____________________            8.  Greenberg's  unsigned performance  reviews  from 1987  to            1990 rate him as either  an excellent or effective  employee.            Areas needing attention  or improvement, however,  are listed            as "[p]rospecting and  attention to detail" (February  1987);            "time  in  marketplace, tolerance/understanding  to differing            opinions" (April 1987);  "[a]cknowledgement and  adaptability            to  changing conditions.   Time  Management and  prospecting"            (February   1989);   "[a]cknowledgement  &   adaptability  to            changing  conditions.    Time  management  and  prospecting."                                         -8-                                          8                      Greenberg responded with a four-page missive of his            own, dispatched to  Ritter and Redman, in which  he contested            the  substance  of  Ritter's  complaints.    Though Greenberg            testified  at  trial that  the fact  that  he only  called on            customers  on Tuesdays,  Wednesdays  and  Thursdays  was  not            discussed  at  his  review,  in his  letter  he  specifically            responded:    "[`]Work  habits  and  methods  [(referring  to            Ritter's  letter)] .  . .  .[']   We have  talked  about this            before and my position has never changed. . . .  It's been my            experience  that successful  salesmen have  different methods            and  if they are successful they should be rewarded [and] not            made to  walk to the  same beat  of some  drummer."   (Second            ellipsis added).                      Redman  replied to  Greenberg with  a short  letter            stating:                           We  received  your letter  of August                      18,  1990, and  we  would  prefer not  to                      continue   a   letter  writing   exchange                      regarding your Sales Philosophy.                           Bob Ritter's memo  of August 8, 1990                      was written  to  document the  fact  that                      your  performance  has  not  been  up  to                      expected  standards  in  the   areas  of:                      expenses,        expense       reporting,                      communications,  work  schedules and  new                      account  penetration.    The   memo  also                      intended to emphasize the  seriousness of                      continued   resistance   to  change   and                                            ____________________            (February  1990).   The  February  1990  review also  states,            "Salesman understands consequences  of performance level drop            with  present inclination not  to change work  methods & time            management issues presented to him."                                         -9-                                          9                      critical  opposition  to suggestions  for                      improvement.                      After  receiving this letter, Greenberg consulted a            lawyer,  who,  on  September  13,  1990,  wrote  to  Redman's            superior suggesting that Greenberg was being subjected to age            discrimination.   On September 19, 1990,  shortly after Union            Camp  received  this  letter,  Redman  and  Ritter  met  with            Greenberg and informed him  that, from that point on,  he was            expressly required to  spend five  days a week  in his  sales            territory.    Greenberg  requested   time  to  consider  this            requirement and  Redman agreed,  telling Greenberg  to "`take            time to think about it.'"                        Finally,  at  a meeting  nearly  a  month later  on            October  15, 1990,  Greenberg refused  to sign a  letter that            explicitly listed six conditions  of employment that he would            be  required to  meet, including  the five-days-in-the-sales-            territory  requirement.9   Greenberg's decision  not to  sign                                            ____________________            9.  The six conditions were stated as follows:                      1.   You must  present  a plan  analyzing                      your top 10  new account prospects as  to                      total dollar potential, how  each account                      fits  our  mix  and  volume  profile, our                      present sales position with each project,                      and   an   immediate   action  plan   for                      penetrating the accounts.                      2.    Call the  Sales Manager  or General                      Manager  every   Monday,  Wednesday,  and                      Friday  (or on  a  daily  basis  whenever                      conditions   warrant)    to   communicate                      account  problems   or  concerns,  review                      competitor actions, and update management                                         -10-                                          10            the letter ended his employment relationship with Union Camp.            Subsequently,  no  other   sales  representative,   including            Greenberg's  replacement,  was  required  to  sign  a similar            document.  Moreover, Union  Camp has never made five  days in            the sales territory an explicit job requirement for any other            sales representative.                      Greenberg brought this action in the district court            alleging  that  Union  Camp  terminated   his  employment  in            violation of the Age Discrimination in Employment Act (ADEA),            29 U.S.C.     621-634.  Greenberg  alleged that Union  Camp's            actions  were motivated by an anti-age animus and a desire to            retaliate against  Greenberg for seeking to  invoke his ADEA-            protected rights.   Following the close  of Greenberg's case,            the district court granted Union Camp's motion for a directed                                            ____________________                      on market conditions.                      3.   Provide  Sales Manager  with written                      feedback   on    customer   reaction   to                      quotations   within   30   days  of   the                      quotations being issued.                      4.    Increase  weekly  sales  calls from                      current average of 12-13 to  a minimum of                      20 per week.                      5.  Maintain 5 day sales schedule in your                      territory  and  be  actively involved  in                      making  customer   calls  Monday  through                      Friday.                      6.  Accurately  report expenses  incurred                      in   entertaining   customers.     Reduce                      customer entertainment expenses by 15% in                      July through December, 1990  from January                      through June, 1990's expenses.                                           -11-                                          11            verdict,  holding  that  Greenberg  had failed  to  show  any            evidence of age  discrimination and that Union Camp  "did not            terminate  [Greenberg]  but   that  [Greenberg]  left  [Union            Camp's] employment because he  blatantly refused to work five            days  a week  in the  territory of  Maine as required  by his            employer."  This appeal followed.                                         -12-                                          12                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      We review  de novo  a district court's  decision to                                 __ ____            grant  a  motion for  a  directed verdict  (or  more properly            judgment as a  matter of law), employing  the "same stringent            standard  incumbent  upon  the   trial  court  in  the  first            instance."  Favorito v.  Pannell, 27 F.3d 716, 719  (1st Cir.                        ________     _______            1994).  In performing this task, we take the evidence and all            reasonable  inferences therefrom in  the light most favorable            to the party opposing  the motion and ask whether  a rational            jury could find in that party's favor.  E.g., Murray v. Ross-                                                    ____  ______    _____            Dove Co., 5 F.3d 573, 576 (1st Cir. 1993).            ________            A.  Age Discrimination Claim            ____________________________                      In a wrongful termination  case under the ADEA, the            plaintiff   must   establish  "`that   his  years   were  the            determinative factor in his discharge, that is, that he would            not have been  fired but for his  age.'"  Mesnick v.  General                                                      _______     _______            Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (quoting Freeman            _________                                             _______            v. Package Mach. Co.,  865 F.2d 1331, 1335 (1st  Cir. 1988)),               _________________            cert. denied, 112 S. Ct. 2965 (1992); see  also Vega v. Kodak            _____ ______                          ___  ____ ____    _____            Caribbean,  Ltd., 3  F.3d 476,  478 (1st  Cir. 1993).   Where            ________________            direct  evidence  of discriminatory  animus  is  lacking, the            burden of  producing evidence  is allocated according  to the            now-familiar  McDonnell  Douglas  framework.   See  McDonnell                          __________________               ___  _________                                         -13-                                          13            Douglas Corp. v. Green, 411 U.S.  792, 802-05 (1973); Sanchez            _____________    _____                                _______            v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).               ___________________                      Under the McDonnell Douglas framework, the employee                                _________________            must initially  come  forward  with  sufficient  evidence  to            establish  a prima  facie case  of  discriminatory discharge.            Thus,  here, Greenberg needed to  establish that (i)  he is a            member of a protected  class, i.e., over forty years  of age,                                          ____            (ii) his job performance was sufficient to  meet Union Camp's            legitimate  job  expectations,  (iii)  he  was   actually  or            constructively  discharged,  and  (iv)  Union  Camp  sought a            replacement  with roughly equivalent qualifications.  Vega, 3                                                                  ____            F.3d at  479; see  also Sanchez,  37 F.3d at  719.   Once the                          ___  ____ _______            plaintiff has met this relatively light burden, a presumption            of  discrimination arises and the onus is then shifted to the            employer to articulate a legitimate, nondiscriminatory reason            for its actions.  Mesnick, 950 F.2d at 823.   If the employer                              _______            produces   such   a   justification,   the   presumption   of            discrimination  vanishes and  the burden  shifts back  to the            plaintiff to show that  the employer's alleged  justification            is  merely pretext  for  discrimination.   Woods v.  Friction                                                       _____     ________            Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994).            _______________                      Greenberg's  termination claim fails at the outset,            however, because he has  not adduced sufficient evidence from            which  a   jury  could   reasonably  conclude  that   he  was            constructively  discharged.   Greenberg maintains  that Union                                         -14-                                          14            Camp constructively  discharged him by requiring  him to sign            the  October  15  letter,  which explicitly  listed  six  job            requirements  that he  needed  to fulfill.    Except for  the            requirement that he  make sales calls  in his territory  five            days a  week, Greenberg  testified that he  was substantially            complying  with   the  conditions   listed  in   the  letter.            Primarily, Greenberg contends that, by requiring him to spend            two additional days a week making sales calls in Maine, Union            Camp constructively discharged him.  We disagree.                      It  is  well  settled  in  this  Circuit  that,  to            establish a  claim of  constructive  discharge, the  evidence            must  support a  finding  that "`the  new working  conditions            would have been so difficult or unpleasant that a  reasonable            person in the  employee's shoes would have  felt compelled to            resign.'"  Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561                       _______    ____________________            (1st Cir.  1986) (quoting  Alicea Rosado v.  Garcia Santiago,                                       _____________     _______________            562 F.2d  114, 119 (1st Cir. 1977)); see also Vega, 3 F.3d at                                                 ___ ____ ____            480  (new   conditions   must   make   work   so   "arduous,"            "unappealing" or "intolerable" that a reasonable person would            resign).   The legal  standard to be  applied is "objective,"            with  the inquiry focused on "the reasonable state of mind of            the  putative  discriminatee."    Calhoun, 798  F.2d  at  561                                              _______            (internal  quotations omitted).   Consequently,  "an employee            may  not be  unreasonably  sensitive to  his  or her  working                                         -15-                                          15            environment."  Id.  (internal quotations  omitted); see  also                           ___                                  ___  ____            Vega, 3 F.3d at 476.            ____                      Within the context of this case, we believe that no            rational jury  could find  that requiring Greenberg  to spend            two  additional days  in Maine  making sales  calls to  be so            intolerable  that a  reasonable person  in Greenberg's  shoes            would have felt compelled to resign.  Initially, we note that            Greenberg  does not assert  that the new  conditions would be            humiliating  or  demeaning,  often  an  important  factor  in            evaluating  a claim  of constructive  discharge.   See, e.g.,                                                               ___  ____            Aviles-Martinez v.  Monroig, 963  F.2d 2, 6  (1st Cir.  1992)            _______________     _______            (sufficient  evidence to  find  constructive discharge  where            evidence included scolding and  ridiculing plaintiff in front            of  clients  on a  daily  basis).   Moreover,  in  explicitly            imposing the six conditions on Greenberg, Union Camp  did not            demote  Greenberg or  reduce his  pay or  total compensation.            See, e.g., Goss v. Exxon Office Sys.  Co., 747 F.2d 885, 888-            ___  ____  ____    ______________________            89 (3d  Cir. 1984) (constructive discharge  where, along with            other  factors,  change in  sales  representative's territory            constituted  substantial  cut  in  pay);  cf.  Nunez-Soto  v.                                                      ___  __________            Alvarado, 918  F.2d 1029,  1030-31 (1st Cir.  1990) (demotion            ________            without  salary cut insufficient for constructive discharge).            Indeed, at his July  1990 review, just prior to  imposing the            conditions  of  employment,  Union  Camp  gave  Greenberg the            largest  merit increase of his  career.  In effect, Greenberg                                         -16-                                          16            contends that the requirement is intolerable because it would            require  him to  spend more  time on  the road,  and possibly            (though not  necessarily) another weeknight or  two away from            home.  In the context of this case, this is not enough.                      Greenberg was a sales representative.  It is hardly            unreasonable   for   an   employer  to   expect   its   sales            representatives to  spend their workdays making  sales calls.            That calling on his customers meant spending time on the road            is  more an  unhappy aspect  of Greenberg's vocation  than an            unreasonable or  intolerable working condition.   See Bristow                                                              ___ _______            v.  Daily Press, Inc., 770 F.2d 1251, 1254-56 (4th Cir. 1985)                _________________            (no   constructive   discharge   where   conditions,   though            unpleasant, are part  and parcel to  the job), cert.  denied,                                                           _____  ______            475 U.S. 1082 (1986).                      Requiring Greenberg to spend two additional days in            Maine appears  burdensome only  if we  focus narrowly on  the            fact that Greenberg resides in Massachusetts.   The degree to            which  requiring Greenberg  to  work two  additional days  in            Maine is  unreasonable, however, must be  measured within the            context  of this case.  Union Camp originally hired Greenberg            specifically to be its sales  representative for the State of            Maine.   Therefore, Greenberg, who lived  in Massachusetts at            the time,  accepted employment knowing  that he was  hired to                                         -17-                                          17            sell   to   Maine   customers.10     Thus,   this   case   is            distinguishable from one  in which an employee who  lives and            works in one  city is offered the  choice between termination            and a  transfer to another city.   See Hazel v. United States                                               ___ _____    _____________            Postmaster Gen., 7 F.3d 1, 5 (1st Cir. 1993) (suggesting that            _______________            transfer from  one city to  another would support  finding of            constructive discharge); but see  Cherchi v. Mobil Oil Corp.,                                     ___ ___  _______    _______________            693 F. Supp. 156,  162-64 (D.N.J.) (no constructive discharge            where  employer   offered   transfer  from   New  Jersey   to            Baltimore),  aff'd,  865 F.2d  249 (3d  Cir. 1988).   Because                         _____            Greenberg  voluntarily   chose   to   work   as   the   sales            representative  for the  Maine  territory,  while  living  in            Massachusetts, he cannot now complain of changes in his  work            schedule that would not be burdensome but for that choice.                       Nonetheless, Greenberg makes much of  the fact that            Union Camp did not  explicitly impose the mandatory five-day-            a-week-sales-call  condition  on  any  of  its  other   sales            representatives or  his younger replacement.   He argues that            this  disparate  treatment  amply   supports  a  finding   of            constructive discharge.   Union Camp officials,  however, all            testified that  the condition was a  basic, albeit unwritten,            requirement of the sales representative  position.  Moreover,                                            ____________________            10.  Nowhere  does  Greenberg   assert  that  he   originally            accepted employment with Union Camp on the condition  that he            spend  no  more  than three  days  a  week  calling on  Maine            customers.                                         -18-                                          18            Greenberg does  not point  to any other  sales representative            who similarly  made calls  in his or  her assigned  territory            only three days  a week that Union  Camp treated differently.            At  most, Greenberg  elicited testimony from  his replacement            that, due  to the need  to finish paperwork,  handle customer            requests and/or complaints, and tend to other vagaries of the            job, he occasionally passed a day without making sales calls,            but  nonetheless   was  not   required  to  sign   a  similar            conditions-of-employment   statement.     This   evidence  is            insufficient.  See Smith  v. Stratus Computer, Inc.,  40 F.3d                           ___ _____     ______________________            11, 17 (1st Cir.  1994) ("In a disparate treatment  case, the            plaintiff  has the  burden of  showing that  she was  treated            differently from  persons situated similarly in  all relevant                                                         __  ___ ________            aspects." (internal quotations omitted)).11             _______                      Moreover, our conclusion is buttressed  by the fact            that  Greenberg  couples   his  allegation  of   constructive            discharge  with  virtually  no  evidence  that  Union  Camp's                                            ____________________            11.  Greenberg relies on  Hazen Paper Co. v.  Biggins, 113 S.                                      _______________     _______            Ct. 1701, 1708 (1993),  which he asserts establishes  that an            employee  who refuses  to  sign an  onerous job  contract not            imposed   on   a   younger   replacement   is  constructively            discharged.  While this premise may be true (though we do not            agree  that  the  Supreme  Court  specifically  addressed the            issue), Greenberg has failed to show that the "contract" here            was sufficiently onerous.  In Hazen, the contract included  a                                          _____            non-compete clause that  would have prohibited the  employee,            who  was  a trained  chemist, from  working  in his  field of            expertise for two years  after leaving the company.   Biggins                                                                  _______            v.  Hazen Paper  Co., 953  F.2d 1405,  1411 (1st  Cir. 1992),                ________________            vacated, 113 S. Ct.  1701 (1993).  Union Camp  sought no such            _______            restriction on Greenberg's future employment.                                         -19-                                          19            motives stemmed from  an animosity  towards age.   Direct  or            circumstantial evidence of a discriminatory animus could help            substantiate a claim that one's working conditions had become            intolerable to  an unreasonable degree.  See,  e.g., Acrey v.                                                     ___   ____  _____            American  Sheep Indus.,  981  F.2d 1569,  1574-75 (10th  Cir.            ______________________            1992) (employer request that employee quit on account  of age            cited as evidence of both animus towards age and unreasonable            working conditions); Goss, 747 F.2d at 888 (verbal abuse that                                 ____            conveyed  animosity  towards   employee's  gender   supported            finding  of  constructive discharge).    As  evidence of  age            discrimination,  Greenberg,  however,  essentially points  to            just  two  factors  --  (1)   the  single  May  1990  inquiry            concerning  Greenberg's retirement  plans, and  (2) the  fact            that no employee over age forty  had been hired by Union Camp            at  the Maine plant during Redman's tenure as plant manager.                       A single inquiry by an employer as to an employee's            plans  for  retirement, however,  does  not necessarily  show            animosity towards age.   See Colosi v. Electri-Flex  Co., 965                                     ___ ______    _________________            F.2d  500, 502 (7th Cir. 1992).  An employer may legitimately            inquire about an employee's  plans so that it can  prepare to            meet  its  hiring needs.    Though  repeated and/or  coercive            inquiries can clearly give rise  to a reasonable inference of            an   anti-age  bias  (and  lend  support   to  a  finding  of            constructive  discharge),  see Calhoun,  798  F.2d at  562-63                                       ___ _______                                         -20-                                          20            (three  inquires  over  seven  months coupled  with  demotion            requiring employee  to report to younger  person employee had            previously trained, and threat of onerous working  conditions            if no resignation),  that is  not the case  here.   Greenberg            alleges only that  Ritter made  a single inquiry  at the  May            1990 meeting as to  whether Greenberg had plans to  retire at            age fifty-five.  Moreover, though Greenberg testified that he            never told Ritter or Redman that he intended to retire early,            he admitted  that an  anecdote he frequently  recounted could            have led them to think he desired to do so.                        The fact that Union Camp's Maine plant did not hire            any employees over age forty  during Redman's tenure as plant            manager adds little to  Greenberg's claim.  As we  have noted            before, without  any attempt  to establish the  demography of            the available hiring pool, this evidence has little probative            value.   See LeBlanc v. Great Am.  Ins., 6 F.3d 836, 848 (1st                     ___ _______    _______________            Cir. 1993), cert. denied, 114 S. Ct. 1398 (1994); cf. Goldman                        _____ ______                          ___ _______            v. First Nat'l  Bank of Boston, 985 F.2d  1113, 1119 n.5 (1st               ___________________________            Cir. 1993).  Moreover, Greenberg offered no evidence at trial            concerning  the  number  of employees  actually  hired,  thus            precluding any reasonable evaluation  of the statistical data            in terms of  sample size.  Finally, that two  years after his            departure  three of seven  sales representatives  employed at            the  Maine  plant  were  over  age  forty,  and that  Redman,            himself,  was  five years  older  than  Greenberg, makes  any                                         -21-                                          21            inference of  animosity towards age on  this evidence dubious            at best.  Therefore,  Greenberg's proffered evidence of anti-            age bias provides little support for his claim of intolerable            working conditions and consequent constructive discharge, and            thus his age-bias claim falls short.                                         -22-                                          22            B.  Retaliatory Claim            _____________________                      Greenberg's  claim  of  retaliatory  discrimination            likewise  fails because  no rational  jury could  conclude on            this evidence that Union Camp acted with a retaliatory motive            in requiring Greenberg  to work five days a week in his sales            territory.  See Mesnick, 950 F.2d at 827 (plaintiff must show                        ___ _______            that  employer's  reason  for adverse  action  taken  against            employee is pretext masking retaliation for employee invoking            his ADEA-protected  rights).  Even taking the evidence in the            light  most favorable to Greenberg, it is clear that his work            schedule had been an  issue with his superiors at  Union Camp            since  at least the November  1989 meeting.   Moreover, it is            not disputed that Greenberg did not adjust his work  schedule            in  response  to  the  August   8  letter,  in  which  Ritter            unequivocally  wrote,  "Work  habits  and   methods  must  be            reviewed with  action taken to better  utilize open available                                           ______  _______ ____ _________            weekly  time to  achieve  job responsibilities."    (Emphasis            ______  ____ __  _______  ___ ________________            added).                        Greenberg responded  to this directive with his own            letter  stating, "We  have talked  about  this before  and my                              __  ____ ______  _____  ____ ______  ___ __            position  has never changed. .  . .   It's been my experience            ________  ___ _____ _______            that successful  salesmen have different methods  and if they            are successful they should be rewarded [and] not made to walk            to  the  same  beat  of  some  drummer."   (Emphasis  added).            Furthermore,  Redman's  August   28  letter  clearly   warned                                         -23-                                          23            Greenberg that  Ritter's letter "was written  to document the            fact  that [Greenberg's]  performance  ha[d] not  been up  to            expected  standards  in  the  areas  of:  expenses,   expense            reporting,  communications,  work schedules  and  new account                                         ____ _________            penetration."  Redman  concluded  by  stating  that  Ritter's            letter  was   "intended  to  emphasize  the   seriousness  of                                                          ___________  __            continued  resistance to  change and  critical opposition  to            _________  __________ __  ______ ___  ________ __________  __            suggestions for improvement."  (Emphasis added).            ___________ ___ ___________                      Any rational view of these interchanges makes clear            that Greenberg's continued refusal to adapt his work schedule            would  result in  further action  by Union  Camp.   Hence, no            rational  jury could  conclude  that the  September 19  order            directing  Greenberg to spend five  days a week  in his sales            territory  ensued  because  Union Camp  sought  to  retaliate            against Greenberg for invoking his ADEA rights.   Rather, the            order was the inexorable result of Greenberg's persistence in            refusing  to modify his work schedule.  See Mesnick, 950 F.2d                                                    ___ _______            at 828  (ADEA should  not permit  a  disgruntled employee  to            "inhibit  a well-deserved  discharge [or  other  sanction] by            merely  filing,  or  threatening to  file,  a  discrimination            complaint.").                                           III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      In   sum,  because   Greenberg  failed   to  adduce            sufficient  evidence  to support  a  finding of  constructive                                         -24-                                          24            discharge or  retaliatory motive, the district  court did not            err in granting Union Camp's motion for a directed verdict on            the   claims   of   age   and   retaliatory   discrimination.            Accordingly, the decision of the district court is                      affirmed.                      affirmed.                                         -25-                                          25
