                                             Filed:   February 12, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                              No. 94-2223
                            (CA-93-2716-K)



Burton Blistein,

                                                Plaintiff - Appellant,

           versus

St. John's College,

                                                 Defendant - Appellee.




                              O R D E R


           The Court amends its opinion filed January 26, 1996, as

follows:
           On page 7, first full paragraph, line 5 -- the word

"requisite" is deleted.

           On page 11, footnote 7, line 4 -- the word "e.g." is
added after the word "see" and before the word "Mitchell."

           On page 12, first paragraph, lines 3-4 -- the case name,

McDonnell Douglas, should be in italics.
                             - 2 -

         On page 13, first full paragraph, line 3 -- the words "be

so intolerable as to" are added after the word "circumstances."

                                     For the Court - By Direction


                                        /s/ Bert M. Montague

                                                 Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BURTON BLISTEIN,
Plaintiff-Appellant,

v.                                                             No. 94-2223

ST. JOHN'S COLLEGE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CA-93-2716-K)

Argued: November 1, 1995

Decided: January 26, 1996

Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Christopher G. Mackaronis, BELL, BOYD & LLOYD,
Washington, D.C., for Appellant. Julie Ellen Squire, GALLAGHER,
EVELIUS & JONES, Baltimore, Maryland, for Appellee. ON
BRIEF: Laurie A. McCann, AMERICAN ASSOCIATION OF
RETIRED PERSONS, Washington, D.C., for Appellant. Peter E.
Keith, GALLAGHER, EVELIUS & JONES, Baltimore, Maryland,
for Appellee.

_________________________________________________________________
OPINION

LUTTIG, Circuit Judge:

In what has become an unfortunate, although foreseeable, pattern,
appellant Burton Blistein sued his employer St. John's College under
the Age Discrimination in Employment Act after he sought, negoti-
ated, and accepted pursuant to a written agreement a generous pack-
age of retirement benefits from the College upon learning that the
College was required to eliminate his position because of substantial
budget shortfalls. Notwithstanding that Blistein continues to accept
the College's largess, he attacks the very retirement agreement to
which he assented and by which the College has extended its generos-
ity. The district court properly granted summary judgment in favor of
the College.

I.

For twenty years, plaintiff-appellant Burton Blistein was the "artist
in residence" at defendant-appellee St. John's College in Annapolis,
Maryland. The College offers a unique Great Books program, in
which all students take the same core courses and receive the same
degree. The College does not offer a degree in the visual arts, nor are
any art courses required for the degree. Art courses are electives
offered through the College's Graduate Institute.

In 1991, the College experienced a severe budget deficit of over
$300,000. The College's Board of Visitors and Governors immedi-
ately began to address the deficit, instituting, inter alia, a new policy
restricting eligibility for post-retirement health benefits, which was to
become effective July 1, 1992. And when the College's new presi-
dent, Christopher Nelson, arrived soon thereafter, he embarked upon
a cost-cutting campaign to eliminate the deficit in the short term and
to fix the long-term problem caused by too great a draw on the Col-
lege's endowment.

President Nelson's cost-cutting efforts included a department-by-
department review of budgets, a hiring freeze, an across-the-board
budget cut of four percent, and modifications to sick leave and vaca-

                    2
tion pay policies. During the department review, the College's dean,
Eva Brann, recommended that the "artist in residence" position be
eliminated as non-essential to the College's core academic program.
Nelson agreed, and determined in early June 1992 to eliminate
Blistein's position effective December 31, 1992.

Blistein was notified of the decision immediately, so that he would
have the opportunity to retire before July 1, 1992, when he would
become ineligible for post-retirement health benefits under the Col-
lege's new benefits policy adopted the previous year. Blistein did
decide to retire, negotiating a package of benefits in addition to the
health benefits, including tuition assistance for his children, four
months severance pay (about $15,000), medical benefits for his
dependent children, and art studio space. Blistein's list of requested
benefits was typed and signed by Fred Billups, the College's trea-
surer, and Blistein then delivered a hand-written letter of resignation
on June 30, 1992. The College has not had an "artist in residence"
since that time.1

After Blistein was denied unemployment benefits because of his
severance pay, and notwithstanding that he had voluntarily resigned
in return for the negotiated package of benefits from the College,
Blistein decided to file a complaint of age discrimination with the
Maryland Commission on Human Rights. The complaint, which was
filed toward the end of 1992, was forwarded to the Equal Employ-
ment Opportunity Commission ("EEOC") in February 1993. As
would be expected, when the College was notified of the complaint,
its attorneys wrote to Blistein's attorney formally apprising him that
_________________________________________________________________

1 Blistein discussed the reason for his departure with Dean Brann in
September 1992. According to Blistein, Dean Brann informed him that
the "artist in residence" position was too costly; that the position was
being eliminated because of the College's financial crisis; that there was
some concern that he "might stay on an (sic) on" if the College did not
force his resignation; and that some tutors thought a recent catalogue he
had compiled was incompetently done. Dean Brann also stated, accord-
ing to Blistein, that the June timing of the resignation was a deliberate
effort to avoid a confrontation over the termination with students and
faculty, and that the position had been eliminated to let Blistein avoid the
humiliation of being fired. Appellant's Br. at 6-7.

                    3
the College had an agreement with Blistein under which he retired
and was given a package of benefits. The April 14, 1993, letter closed
by stating, "if Mr. Blistein wishes to repudiate that agreement, the
College will reassess its obligations to him." J.A. at 152.

Blistein's attorney responded by telephone on May 18, and con-
firmed in a letter dated May 20, that because of the Supreme Court's
decision in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), Blistein
had decided against pursuing his ADEA claim and had agreed to
withdraw his EEOC charge. The letter recited that the College had in
turn agreed that upon withdrawal of Blistein's charge, it would "con-
tinue to treat [Blistein's] separation from employment as a voluntary
resignation and that he [would] be entitled to continue to receive the
benefits which he negotiated in June, 1992, prior to his submitting his
letter of resignation." J.A. at 103.

Blistein wrote to the EEOC on May 28, 1993, stating: "I must
regretfully withdraw my charge of age discrimination. . . ." J.A. at
104. In the same letter, however, Blistein said that he was concerned
the College was going to withdraw his benefits, and he asked the
EEOC to "hold actual implementation of withdrawal until you hear
from me that [the negotiation concerning the status of my benefits]
has been satisfactorily completed." Id. Blistein also attempted to have
the EEOC pursue the charge so that he could technically "honor" his
agreement with the College not to pursue the claim, yet still force the
College to defend against his claim:

        I understand that the EEOC can, if it wishes, pursue this
        charge independently. I certainly do not object, as long as
        it is clear that I have officially withdrawn my charge.

Id. The EEOC notified Blistein on June 21, 1993, that it had granted
his request to withdraw the charge.

After withdrawal of the EEOC charge, the College sent Blistein a
"Release" of legal claims to "formalize Mr. Blistein's part of the bar-
gain." J.A. at 155-57. Blistein never signed the release, and instead
filed this action under the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1995), on
September 17, 1993. The College in turn filed a breach of contract

                    4
counterclaim, after which Blistein added retaliation and abuse of pro-
cess claims to his complaint. The district court rejected the College's
argument that Blistein's ADEA claim should be dismissed because
Blistein had failed to exhaust his administrative remedies by with-
drawing the complaint from the EEOC. It also rejected the argument
that Blistein had waived his ADEA claim by entering into the retire-
ment agreement. The district court granted summary judgment for the
College, however, on the grounds that Blistein failed to make out a
prima facie case of age discrimination and that he failed to show that
the College's proffered non-discriminatory rationale for its decision
was merely a pretext for discrimination. Although for reasons differ-
ent from those of the district court, we affirm that judgment.

II.

As a threshold matter, the College alleged below that Blistein
waived his right to bring suit under the ADEA, either in June 1992,
when he resigned and negotiated benefits from the College, or as a
result of the May 1993 agreement between Blistein's attorney and the
College. Both the College and Blistein moved for summary judgment
on this issue. The district court held that neither of the two agree-
ments was sufficient to constitute a valid waiver under the 1990
amendments to the ADEA. In reviewing that holding, we begin, as
always, with the statute.2
_________________________________________________________________

2 We reject Blistein's contention that the issues decided against the
College below are not before this court because the College did not
cross-appeal. See Appellant's Br. at 9, 13 n.5; Appellant's Reply Br. at
5, 17-18. Blistein simply misreads Resolution Trust Corp. v. Maplewood
Investments, 31 F.3d 1276 (4th Cir. 1994), in which we observed that a
cross-appeal is not necessary when an appellee received a favorable
judgment in the court below and seeks no modification of the award. Id.
at 1278 n.2 (quoting Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) ("It
is well accepted . . . that without filing a cross-appeal or cross-petition,
an appellee may rely upon any matter appearing in the record in support
of the judgment below.") and Blackwelder v. Millman, 522 F.2d 766,
771-72 (4th Cir. 1975) ("[Party prevailing below,] without cross-appeal,
may support the judgment by urging any theory, argument, or contention
which is supported by the record, even though it was specifically rejected
by the lower court." (emphasis added) (internal quotation marks omit-
ted))).

                    5
A.

Effective October 16, 1990, the ADEA was amended by the Older
Workers Benefit Protection Act ("OWBPA"), which provides, in rele-
vant part:

       (1) An individual may not waive any right or claim under
       this chapter unless the waiver is knowing and voluntary.
       Except as provided in paragraph (2), a waiver may not be
       considered knowing and voluntary unless at a minimum--

       (A) the waiver is part of an agreement between
       the individual and the employer that is written in
       a manner calculated to be understood by such indi-
       vidual, or by the average individual eligible to par-
       ticipate;

       (B) the waiver specifically refers to rights or
       claims arising under this chapter;

       (C) the individual does not waive rights or
       claims that may arise after the date the waiver is
       executed;

       (D) the individual waives rights or claims only in
       exchange for consideration in addition to anything
       of value to which the individual already is entitled;

       (E) the individual is advised in writing to consult
       with an attorney prior to executing the agreement;

       (F)(i) the individual is given a period of at least 21
       days within which to consider the agreement; . . .

       (G) the agreement provides that for a period of
       at least 7 days following the execution of such
       agreement, the individual may revoke the agree-
       ment, and the agreement shall not become effec-
       tive or enforceable until the revocation period has
       expired . . . .

                   6
29 U.S.C.A. § 626(f) (West Supp. 1995).

Neither the June 1992 document listing the benefits Blistein was to
receive nor the May 1993 letter from Blistein's counsel to the College
includes the provisions from the OWBPA; the June agreement does
not mention rights or claims under the ADEA, as required by subpara-
graph (B), and neither agreement contains the consideration
and revocation time periods required by subparagraphs (F)(i) and (G),
respectively. Contrary to the district court's belief, however, the
absence of these statutory requirements rendered the retirement agree-
ment merely voidable, not void, and we conclude that Blistein ratified
the retirement agreement by accepting the substantial benefits pro-
vided thereunder.3

In O'Shea v. Commercial Credit Corp., 930 F.2d 358, 362 (4th
Cir.), cert. denied, 502 U.S. 859 (1991), we held that an invalid
release of an ADEA claim becomes valid when an employee accepts
the benefits of a release agreement and thereby demonstrates an intent
to ratify that agreement. Although the district court correctly noted
that the termination agreement at issue in O'Shea was consummated
prior to enactment of OWBPA, Blistein v. St. John's College, 860 F.
Supp. 256, 260 (D.Md. 1994), it mistakenly concluded that the ratifi-
cation theory underlying the holding in O'Shea did not survive
OWBPA's enactment.

When it enacted OWBPA, Congress resolved a split among the cir-
cuits over how to determine whether an ADEA claim had been val-
idly released. Several circuits had adopted a federal common law
_________________________________________________________________

3 Because we hold that Blistein's ratification of the retirement agree-
ment created a binding contract, we reject Blistein's contention that the
College's counterclaim to enforce that contract constituted retaliation
under the ADEA. Indeed, in our view, the College presented a valid
counterclaim that Blistein had breached his contract with the College.
Both the June 1992 agreement, under which Blistein retired in exchange
for a package of benefits, and the May 1993 agreement, under which
Blistein promised to withdraw his ADEA complaint in exchange for the
continued payment of those benefits, confirm an intention by the parties
to form a retirement benefits contract, a contract which appears to have
been breached by Blistein in bringing this action.

                    7
"totality of the circumstances" test, see O'Shea, 930 F.2d at 361 (cit-
ing cases), while others, including our circuit in O'Shea, had resorted
to ordinary state law contract principles in resolving the question, see
id. at 362 (citing cases). In enacting OWBPA, Congress essentially
codified the "totality of the circumstances" test, rejecting application
of ordinary state law contract principles in determining whether a
release agreement is valid.4 Nothing in OWBPA, however, abrogates
the common law principle that an invalid agreement can be ratified
by subsequent conduct. See Wamsley v. Champlin Refining & Chemi-
cals, Inc., 11 F.3d 534, 539 (5th Cir. 1993), cert. denied, 115 S. Ct.
1403 (1995). OWBPA thus leaves intact our holding in O'Shea that
ratification of an invalid release of an ADEA claim is possible. See
O'Shea, 930 F.2d at 362. Indeed, if anything, the text of OWBPA
lends support to that holding through its implicit recognition that an
ADEA release agreement that does not meet OWBPA's requirements
is merely a voidable, not a void, contract.

OWBPA provides that "[a]n individual may not waive any right or
claim under [the ADEA] unless the waiver is knowing and volun-
tary." 29 U.S.C.A. § 626(f)(1). The remainder of the section then
defines when a waiver is to be deemed "knowing and voluntary."
§§ 626(f)(1)(A)-(H). From Congress' reliance upon the terms "know-
ing" and "voluntary," which parallel the common law concepts of
fraud, duress, and mistake, it is apparent that Congress was defining
only those circumstances in which a contract would be voidable, not
when it would be void. See S. REP. NO. 263 at 31-32, reprinted in
1990 U.S. CODE CONG. & ADMIN. NEWS at 1537 (referring to "the
absence of fraud, duress, coercion, or mistake of material fact" in dis-
cussion of the "`knowing and voluntary' issue"). For, at common law,
fraud, duress and mistake did not void a contract, but, rather, only
_________________________________________________________________

4 See S. REP. NO. 263, 101st Cong., 2d Sess. 32, reprinted in 1990 U.S.
CODE CONG. & ADMIN. NEWS 1509, 1537 ("The Committee expects that
courts reviewing the `knowing and voluntary' issue will scrutinize care-
fully the complete circumstances in which the waiver was executed. The
Committee expreses (sic) support for the [totality of the circumstances]
approach taken on this limited issue in Cirillo v. Arco Chemical Co., 862
F.2d 448 (3rd Cir. 1988), and disapproves the [ordinary contract princi-
ples] approach adopted in Lancaster v. Buerkle Buick Honda Co., 809
F.2d 539 (8th Cir. 1987), cert. denied, [482 U.S. 928] (1987).").

                    8
rendered that contract voidable. Wamsley, 11 F.3d at 538 (citing
RESTATEMENT (SECOND) OF CONTRACTS § 7 cmt. b).

Thus, an employee who unknowingly and involuntarily enters into
a retirement agreement, as those terms are defined by OWBPA, has
a voidable, not a void, contract, much like a party who enters into a
contract under duress has a voidable, rather than a void, contract.
Upon learning that the agreement is voidable, the employee, like the
party who acted under duress, can either avoid performance of the
contract or accept its benefits and thereby ratify the contract. See
Blakeney v. Lomas Information Systems, Inc., 65 F.3d 482, 485 (5th
Cir. 1995). If the employee ratifies the agreement, a court does not
"enforc[e] the promises contained in any of the allegedly voidable
waiver agreements as such. What the court . . . enforc[es] is a new
promise, evidenced by subsequent conduct, to be bound by the terms
of the original waiver agreements." Wamsley, 11 F.3d at 540 n.11.

The district court, finding O'Shea inapplicable, rejected the Fifth
Circuit's explicit holding in Wamsley that the ratification theory sur-
vives OWBPA's enactment. The district court followed instead the
Seventh Circuit's decision in Oberg v. Allied Van Lines, Inc., 11 F.3d
679 (7th Cir. 1993), cert. denied, 114 S. Ct. 2104 (1994), a decision
which has since been questioned by the Seventh Circuit. See Fleming
v. U.S. Postal Service AMF O'Hare, 27 F.3d 259, 261 (7th Cir. 1994)
(noting that the Fifth Circuit in Wamsley "strongly criticized" Oberg,
and finding "[t]he idea behind [Oberg] . . . [to be] a little obscure"),
cert. denied, 115 S. Ct. 741 (1995). In following Oberg, the district
court erred. Wamsley, not Oberg, is the post-OWBPA decision that
is most in accord with our circuit precedent in O'Shea. If we were to
follow Oberg, we would, as we observed in O'Shea, 930 F.2d at 363,
allow persons like Blistein and O'Shea to have it "both ways," to
retain the benefits that they receive pursuant to their retirement agree-
ments, yet to challenge, through suits against their unsuspecting
employers, the very agreements under which those benefits were
extended. This, we find no evidence Congress contemplated.

B.

On the merits of whether Blistein relinquished through ratification
any ADEA claim he might have had, Blistein argues that "there was

                    9
no release agreement to ratify" because the June retirement agreement
does not even mention the ADEA. Appellant's Reply Br. at 22. Even
though Blistein is technically correct that he never executed a formal
written release agreement and that the June retirement agreement does
not mention the ADEA, Blistein clearly agreed, through the May 18,
1993, conversation between his attorney and counsel for the College,
to withdraw his ADEA claim in return for the College's promises to
continue to treat Blistein's resignation as voluntary and to continue to
pay him the benefits that he had earlier negotiated. That conversation
was memorialized as follows in the May 20, 1993, letter from
Blistein's attorney to the College:

        As we confirmed in our conversation, upon[Blistein's]
        withdrawal of his EEOC Charge, the College will continue
        to treat his separation from employment as a voluntary res-
        ignation and that he will be entitled to continue to receive
        the benefits which he negotiated in June, 1992, prior to his
        submitting his letter of resignation. . . .

        . . . [I]f this does not accurately set forth our understanding,
        please contact me.

J.A. at 103 (emphasis added). Thus, the agreement that existed
implicitly in June, 1992, was made explicit in May, 1993: Blistein
would not pursue any departure-related claims against the College
(ADEA or otherwise) if the College would continue to abide by the
June retirement agreement, treating Blistein's resignation as voluntary
and continuing to pay the retirement benefits negotiated pursuant to
that agreement.5 By accepting the benefits of that agreement, with full
awareness that that agreement did not meet the requirements of
OWBPA,6 Blistein ratified it and thereby forewent any claim under
the ADEA.
_________________________________________________________________

5 Even were we to accept the hypertechnical argument that Blistein did
not agree in May, 1993, to waive his right to file an ADEA claim in fed-
eral court because the May 20 letter only states that he would withdraw
his ADEA claim from the EEOC, Blistein would have but a Pyrrhic vic-
tory. For Blistein's agreement to treat his resignation as voluntary would
ensure that he could never prevail on a claim under the ADEA, which
requires discharge as an element of the prima facie case.

6 Blistein's attorney acknowledges that he discussed the fact "that Mr.
Blistein had never signed a release which would comport with the

                    10
III.

Because the district court erroneously held that Blistein had not
waived his ADEA claim by ratifying the retirement agreement, it was
obliged to consider the merits of Blistein's ADEA claim.

The ADEA makes it unlawful for an employer "to discharge any
individual . . . because of such individual's age." 29 U.S.C.A.
§ 623(a)(1). An ADEA plaintiff may offer direct evidence that the
decision to terminate him was motivated by age, or, alternatively,
"may resort to the judicially created scheme established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981), and adapted
to ADEA cases." E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940
(4th Cir. 1992).

Blistein proceeded under the McDonnell Douglas proof scheme.
Under this scheme, the plaintiff in the usual ADEA case must demon-
strate that: (1) he is a member of the protected class, (2) he was dis-
charged, (3) at the time of discharge, he was performing at a
satisfactory level, meeting his employer's legitimate expectations, and
(4) following his discharge, he was replaced by someone of compara-
ble qualifications7 outside the protected class. Mitchell v. Data Gen-
_________________________________________________________________

requirements of the Older Workers Benefit Protection Act" with counsel
for the College during the May 18, 1993, discussion in which he stated
that Blistein agreed he would withdraw his EEOC complaint if the Col-
lege would continue to provide benefits. See J.A. at 296, 297 (letter from
M. Foreman to M. Travieso of October 11, 1993). In any event, Blistein
continues to this day to accept benefits from the College pursuant to the
agreement.

7 Our opinion in Clay Printing omitted the clause "comparable qualifi-
cations" in articulating the fourth element of the prima facie case. 955
F.2d at 941. However, we have repeatedly required proof, at the prima
facie stage, that the replacement employee was comparably qualified, see, e.g.,
Mitchell, 12 F.3d at 1315; Western Electric, 713 F.2d at 1014, since the
purpose of the prima facie case is to identify those circumstances in
which a presumption of discrimination is reasonable. When the replace-
ment employee has greater qualifications, an inference that the discharge

                    11
eral Corp., 12 F.3d 1310, 1315 (4th Cir. 1993); E.E.O.C. v. Western
Elec. Co., Inc., 713 F.2d 1011, 1014 (4th Cir. 1983). The first and
third elements of Blistein's prima facie case under McDonnell
Douglas are not disputed: sixty-one at the time of his resignation,
Blistein was clearly within the class of persons protected by the
ADEA, see 29 U.S.C.A. § 631(a) (West 1985) (defining protected
class as persons "who are least 40 years of age but less than 70 years
of age"); and, although the record might support such an allegation,
the College does not allege that Blistein was performing unsatisfac-
torily. There is a dispute over both the second and fourth elements,
however. The district court erred in holding that Blistein satisfied the
second element of his prima facie case, but correctly held that he
failed to meet the fourth element.8

A.

With respect to the second element of his prima facie case, Blistein
does not claim (nor could he) that he was actually discharged; rather,
he contends that he was constructively discharged by the College.
Typically, "[a] constructive discharge occurs when an employer delib-
erately makes an employee's working conditions intolerable and
thereby forces him to quit his job." Bristow v. Daily Press, Inc., 770
F.2d 1251, 1255 (4th Cir. 1985) (internal quotation marks omitted),
cert. denied, 475 U.S. 1082 (1986); see also Paroline v. Unisys Corp.,
879 F.2d 100, 113-14 (4th Cir. 1989) (Wilkinson, J., dissenting),
adopted by 900 F.2d 27 (4th Cir. 1990) (en banc). Blistein, however,
_________________________________________________________________

was motivated by discrimination is simply not warranted. Cf. Cook v.
CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993) (holding that a
Title VII plaintiff who was discharged for rules infractions must demon-
strate, as part of his prima facie case for racially disparate discipline,
"that the prohibited conduct in which he was engaged was comparable
in seriousness to misconduct of employees outside the protected class"
who were less severely disciplined (emphasis added)).

8 Although we have no occasion to discuss at length Blistein's argu-
ment of pretext by the College, we agree with the district court that
Blistein also failed to demonstrate that the College's proffered non-
discriminatory rationale for its actions was merely pretext for discrimina-
tion.

                    12
claims not so much that his "working conditions" were made intolera-
ble, but that the College's policy change regarding post-retirement
health benefits eligibility, coupled with the College's announcement
of its decision to eliminate his position before he would again become
eligible for these benefits under the new eligibility rules, "forced" him
to resign in June in order to receive benefits under the old eligibility
rules.9

Several of our sister circuits have suggested that early retirement
to prevent the withdrawal or reduction of benefits might, under some
circumstances, be so intolerable as to give rise to a constructive
discharge. See, e.g., Smith v. World Ins. Co., 38 F.3d 1456, 1461
(8th Cir. 1994); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480
(1st Cir. 1993); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1214
(5th Cir.), cert. denied, 113 S. Ct. 68 (1992); Mitchell v. Mobil
Oil Corp., 896 F.2d 463, 467 (10th Cir.), cert. denied, 498 U.S. 898
(1990); Bodnar v. Synpol, Inc., 843 F.2d 190, 193 (5th Cir.),
cert. denied, 488 U.S. 908 (1988). This is not the case here,
however, because Blistein has offered no evidence that his continued
employment would even have approached the intolerable.

"Intolerability" is not established by showing merely that a reason-
able person, confronted with the same choices as the employee, would
have viewed resignation as the wisest or best decision, or even that
the employee subjectively felt compelled to resign; presumably every
resignation occurs because the employee believes that it is in his best
interest to resign. Rather, "[i]ntolerability. . . is assessed by the objec-
tive standard of whether a `reasonable person' in the employee's posi-
tion would have felt compelled to resign," Bristow, 770 F.2d at 1255
_________________________________________________________________

9 Blistein cannot argue that the College's change in eligibility for health
benefits alone resulted in his constructive discharge, because the policy
change affected all employees of the College equally, and thus was mani-
festly not targeted at Blistein. See Bristow, 770 F.2d at 1255 ("Where
. . . all employees are treated identically, no particular employee can
claim that difficult working conditions signify the employer's intent to
force that individual to resign."). Nor of course can he argue that the Col-
lege's elimination of his position constituted a constructive discharge,
because his claim is that he was discharged in June, six months prior to
the College's anticipated elimination of his position in December.

                    13
(emphasis added) -- that is, whether he would have had no choice but
to resign. While Blistein arguably proffered evidence sufficient to
show that it was in his economic interest to resign, he utterly failed
to proffer evidence that he was compelled to do so.

First, even assuming that the College's change in eligibility for
post-retirement health benefits, combined with the subsequent deci-
sion to eliminate Blistein's position, constituted a"withdrawal" of
benefits from Blistein, the benefits were wholly gratuitous, as Blistein
himself concedes. J.A. at 353 (Blistein Depo.) ("[T]he college can
change any of the benefits at any time.").10 The withdrawal of gratu-
itous benefits simply cannot make continued employment so intolera-
ble that an employee would be compelled to resign. We reject the
dictum in Vega relied upon by the district court, 860 F. Supp. at 263,
to the extent that it could be read to suggest otherwise. See Vega, 3
F.3d at 480 ("[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." (internal quotation marks
omitted)).

Second, the notice that Blistein received from the College in June
that his position was to be eliminated in December was not even a
threatened withdrawal of benefits, as Blistein contends. The College
was under no obligation to notify Blistein that it planned to eliminate
his position, and had it not done so, Blistein would not have been eli-
gible (as a consequence of the broad policy change adopted over a
year earlier) for the post-retirement health benefits when his position
was eliminated in December. The June notice therefore allowed
Blistein to choose either the status quo of continuing to work without
_________________________________________________________________

10 President Nelson explained the nature of the benefits as follows:

        It was always the understanding that the practice[on post-
        retirement medical benefits] could be modified at any time and
        that these benefits were not considered to be lifetime benefits,
        that is as the policy would change at the college, so could the
        postretirement. If the college would choose to take it away, this
        could be taken away even as to people who have retired.

J.A. at 342 (Nelson Depo.).

                    14
eligibility for benefits until the elimination of his position, or a profit-
able early retirement package that included not only the post-
retirement health benefits, but severance pay, tuition assistance, and
other benefits as well. In effect, the June notification was an induce-
ment to early retirement, and inducements can never render continued
employment intolerable. As the First Circuit held in Vega, "[m]ere
offers for early retirement, even those that include attractive incen-
tives designed to induce employees who might otherwise stay on the
job to separate from the employer's service, do not transgress the
ADEA." 3 F.3d at 480; see also Henn v. National Geographic Soc.,
819 F.2d 824, 826 (7th Cir.) ("When one option makes the recipient
better off, and the other is the status quo, then the offer is beneficial.
That the benefits may overwhelm the recipient and dictate the choice
cannot be dispositive."), cert. denied, 484 U.S. 964 (1987).

It is true that the status quo prior to the decision to eliminate
Blistein's position was that Blistein's employment post-July 1 would
have included at least the possibility of renewed eligibility for post-
retirement health benefits when he became 65, whereas once the deci-
sion to eliminate his position was made, it was certain that his contin-
ued employment would have been without even such a possibility.
However, the elimination of a mere possibility of future eligibility for
benefits can no more render continued employment intolerable than
can the withdrawal of gratuitous benefits. Cf. Christopher, 950 F.2d
at 1215 (distinguishing between lost expectation of future benefits
and loss of benefits to which one is already entitled).

Insofar as his alleged constructive discharge is concerned, Blistein
is no differently situated than was the plaintiff in Ackerman v.
Diamond Shamrock Corp., 670 F.2d 66 (6th Cir. 1982), a decision
with which we fully agree. Ackerman, like Blistein, was informed by
his superior that his position was to be eliminated, was offered a valu-
able package of benefits beyond that for which he was otherwise eli-
gible, had ample time to consider the offer, consulted an attorney, and
ultimately signed the agreement, received the benefits, and subse-
quently filed an ADEA claim, claiming that he had been construc-
tively discharged. Id. at 68. Ackerman's argument was roundly
rejected by both the district court and the court of appeals on the same
ground that Blistein's analogous argument must be rejected -- his
retirement was entirely voluntary. Id. at 69-70.

                     15
Because Blistein wholly failed to proffer evidence that the Col-
lege's offer in any way made his continued employment intolerable,
or that his departure was anything other than voluntary, the district
court erred in holding that Blistein was constructively discharged and
therefore that he met the second element of his prima facie case.

B.

Blistein also fails the fourth element of his prima facie case,
namely, that following his discharge he was replaced by someone of
comparable qualifications outside the protected class. Mitchell, 12
F.3d at 1315. Although no one has replaced Blistein as "artist in resi-
dence," Blistein argues that he nevertheless satisfied this element of
his case because some of his former duties were assumed by Ms.
Zelamski, a woman in her late twenties and therefore outside the pro-
tected class. Even if the courses assumed by Ms. Zelamski were the
primary duties of the "artist in residence," Blistein himself was first
offered the opportunity to continue to teach those courses on the same
part-time contractual terms eventually offered to Ms. Zelamski, an
offer which he declined. Thus, the hiring of Ms. Zelamski has no pro-
bative force on the question of whether the College presumptively
engaged in age discrimination against Blistein.

Furthermore, Blistein acknowledges that only some of his former
duties were assumed by Ms. Zelamski; other duties were assumed by
various individuals employed by the College who were themselves
within the protected class,11 and some of Blistein's duties were not
assumed by anyone. The facts here are therefore quite different from
those in Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104,
1109 (8th Cir.), cert. denied, 115 S. Ct. 355 (1994), relied on by
Blistein, where the replacement employee assumed virtually all of the
duties of the discharged employee's position except the job title. The
fact that Blistein, as the College's "artist in residence," taught a few
_________________________________________________________________

11 Because Blistein was not "replaced" by anyone, our requirement that
an ADEA plaintiff must show he was replaced by someone outside the
protected class in order to satisfy the fourth element of his prima facie
case is in no way implicated in this case. See O'Connor v. Consolidated
Coin Caterers Corp., 56 F.3d 542, 546 (4th Cir. 1995), cert. granted, 116
S. Ct. 472 (Nov. 13, 1995).

                    16
classes in life-drawing and sculpture that were assumed by Ms.
Zelamski on a part-time, contractual basis after his departure, or that
other employees of the College assumed various other of the duties
previously performed by Blistein,12 does not mean that someone
replaced Blistein as "artist in residence." It is therefore more appropri-
ate to address this as a reduction-in-force case.

In reduction-in-force cases where there is no replacement
employee, proof of the fourth element is still required, albeit in modi-
fied form. Western Electric, 713 F.2d at 1014-15. A plaintiff in such
circumstances can establish this element of his prima facie case "ei-
ther by showing that [comparably qualified] persons outside the pro-
tected class were retained in the same position or by producing some
other evidence indicating that the employer did not treat age neutrally
[in deciding to dismiss the plaintiff]." Herold v. Hajoca Corp., 864
F.2d 317, 320 (4th Cir. 1988) (quoting Western Electric, 713 F.2d at
1014-15), cert. denied, 490 U.S. 1107 (1989).13

We reject at the outset any suggestion that the College's retention
of a 36-year-old part-time athletic director constitutes evidence that
_________________________________________________________________

12 The fact that the College wished to continue aspects of its visual arts
program if possible given its budget constraints, and that the College was
willing and able to persuade existing faculty to shoulder additional
responsibilities in order to do so, is not inconsistent with the College's
view that the "artist in residence" position was non-essential. It is
through precisely such efforts that academic employers operate within
budget constraints while at the same time maximizing educational oppor-
tunities for their students.

13 In reduction-in-force cases, where relative performance was the basis
of the discharge of some employees from within a group selected for
reduction, we have modified both the third and the fourth elements,
requiring proof that: (3) the plaintiff was performing at a level substan-
tially equivalent to the lowest level of those retained; and (4) the process
of selection produced a residual work force with some unprotected per-
sons who were performing at a level lower than that at which the plaintiff
was performing. Mitchell, 12 F.3d at 1315; Duke v. Uniroyal Inc., 928
F.2d 1413, 1418 (4th Cir.), cert. denied, 502 U.S. 963 (1991). Because
the College's decision to eliminate Blistein's position was not based on
relative performance, the Mitchell/Duke formulation is not appropriate in
this case.

                    17
someone outside the protected class was retained in the same position
as Blistein, merely because both positions were considered "non-
essential" to the College's core academic function. Defining the posi-
tions at such a high level of generality as Blistein proposes, see
Appellant's Br. at 16 ("[T]he College's Director of Athletics . . . also
occupied a position that, like the artist-in-residence, was not a part of
the `academic curriculum of the college.'"); Appellant's Reply Br. at
3 (referring to the Director of Athletics as a "comparable non-
essential position"); id. at 4 (referring to other non-essential personnel
as "comparably situated"), does not make them the "same" for pur-
poses of determining whether we should draw a presumption of age
discrimination from the fact that one is retained and the other abol-
ished.

Blistein also urges us to consider certain "other evidence" that the
employer did not treat age neutrally. Herold, 864 F.2d at 320. In
doing so, we bear in mind that, as the Supreme Court has repeated
time and again, a prima facie case should be deemed established only
"under circumstances which give rise to an inference of unlawful dis-
crimination." Burdine, 450 U.S. at 253; see also Cooper v. Federal
Reserve Bank of Richmond, 467 U.S. 867, 874 (1984) ("A plaintiff
meets [his] initial burden [of establishing a prima facie case] by offer-
ing evidence adequate to create an inference that he was denied an
employment opportunity on the basis of a discriminatory criterion
. . . ."); Burdine, 450 U.S. at 254 ("[T]he prima facie case `raises an
inference of discrimination only because we presume these acts, if
otherwise unexplained, are more likely than not based on the consid-
eration of impermissible factors.'" (quoting Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577 (1978))). An ADEA plaintiff
therefore meets the fourth element of his prima facie case under the
"other evidence" prong of the Herold/Western Electric formulation
only by offering evidence from which age discrimination may reason-
ably be inferred. None of the "other evidence" Blistein offers permits
such an inference.

First, Blistein advances the fact that "substantially younger
employees in other non-essential positions were unaffected by the
College's cost-cutting measures" as "[other] evidence that the College
did not treat age `neutrally' in the decision to terminate [him]."
Appellant's Br. at 15-16. However, the athletic director is the only

                     18
such person Blistein identifies from outside the protected class. We
have already rejected as insufficient to raise an inference of age dis-
crimination the retention of the athletic director because that position
is not "the same" as the "artist in residence" position occupied by
Blistein. Lest we allow in the back door of "other evidence" that
which we have rejected at the front, the retention of the athletic direc-
tor cannot serve as "other evidence."

In any event, in order for a comparison of dissimilar positions to
serve as "other evidence" from which an inference of age discrimina-
tion would be possible, the ADEA plaintiff must identify the retention
of considerably more than a single person outside the protected class.
An inference of discrimination might be raised, for example, if every
protected person had been discharged, while every non-protected per-
son had been retained, even though the positions being compared are
wholly dissimilar, but the retention of merely one (or even a substan-
tial number) of unprotected persons in dissimilar positions is at least
as likely to be a consequence of the particular need for those positions
than of age discrimination. It thus likewise cannot serve as "other evi-
dence" from which a reasonable inference of age discrimination can
be drawn.

Blistein does point to four other non-essential employees -- the
four employees whose salaries, like Blistein's, exceeded the bench-
marks of a compensation study conducted by the College -- whom
he claims were younger than he, see Appellant's Br. at 24 n.7, and
therefore whose retention serves as evidence that the College did not
treat age neutrally, even though they were all within the ADEA pro-
tected class. Blistein misstates the evidence, however, for two of these
four employees were, in fact, older than Blistein. See J.A. at 646.
Thus, even if relative age differences within the protected class could
support a prima facie case of age discrimination, an argument which
we have repeatedly rejected, see, e.g., Clay Printing, 955 F.2d at 941,
the district court was correct in recognizing that "the fact that employ-
ees older than [Blistein], whose salaries also exceeded the [compensa-
tion study], were not terminated would appear to cut against
[Blistein's] claim of age discrimination." 860 F. Supp. at 268.

Finally, Blistein argues that because "the timing of [his] termina-
tion was allegedly orchestrated because of the College's upcoming

                    19
change in post-retirement medical benefits -- eligibility for which
was dependent on a minimum age of 55[,] . . . it is clear that [his] age
influenced at least some of the decisions pertaining to his termina-
tion." Appellant's Reply Br. at 4, 5. This argument, however, is essen-
tially an attempt to resurrect through the "other evidence" prong an
argument we have already rejected in our discussion of whether
Blistein was constructively discharged. "The timing" of the College's
notice to Blistein of the planned elimination of the"artist in resi-
dence" position amounted to an early retirement offer because it
allowed Blistein to avail himself of post-retirement health benefits
before the College's policy change rendered him ineligible for them.
To be sure, Blistein was only eligible under the old policy, and the
notice therefore only amounted to an early retirement offer, because
Blistein was over 55 and had more than ten years of service with the
College. To that extent, age was implicated in Blistein's departure,
but the ADEA specifically excludes voluntary early retirement incen-
tives from its coverage. See 29 U.S.C.A. § 623(f)(2)(B)(ii). Thus,
while the fact that Blistein was only eligible for the early retirement
incentive because of his age might be evidence that age was not
treated neutrally, it cannot be "other evidence" what would give rise
to an inference of an ADEA violation.

Because Blistein failed to meet the fourth element of his prima
facie case, the district court properly granted summary judgment for
the College.

                                 *****

In affirming the district court's judgment that this plaintiff is not
entitled to relief, we cannot help but pause and reflect upon the effect
that cases such as this have upon the important body of
antidiscrimination law.

Here, an institution of higher education responsibly made the hard
decisions required to operate within its budgetary constraints. In a
right-minded effort to lessen the impact of those decisions on one of
its affected employees, the institution immediately apprised the
employee of the action, so that the employee could receive substantial
benefits to which he would not otherwise have been entitled. And in
a further overture of goodwill, the institution agreed to provide the

                    20
employee with yet additional and substantial benefits for himself and
his family to which the employee also would not otherwise have been
entitled. In return for, and after accepting, the institution's munifi-
cence, the employee turned around and lodged a complaint with the
Equal Employment Opportunity Commission, repudiating the very
agreement that he himself had sought and under which his negotiated
benefits were provided.

When it appeared to the employee that he stood to lose the valuable
benefits that the institution had agreed to provide him, he promised
to (and did) withdraw the charges filed with the EEOC, but only after
attempting to conscript the EEOC to pursue the claim on his behalf
so that the institution would receive what he believed was its deserved
retribution, while at the same time he could "honor" his promise not
to pursue the claim and retain the benefits provided by his employer.
Ultimately, when the EEOC with good cause declined to pursue the
claim, the employee reneged on even his new promise by refusing to
sign a formal release of claim. For reasons that can only be the subject
of surmise, the employee then retained new legal counsel and brought
his claim against the institution, naturally ignoring his own course of
conduct and the institution's reasonable reliance thereon, and resting
instead on the technicality that he never actually signed a formal
agreement that he would not sue the institution. All the while, and
without apology, the employee continues to accept the substantial
benefits provided by the institution. And to add insult to injury, he has
the temerity to argue that the institution's efforts to defend itself
against the employee's baseless claims constitute retaliation and
abuse of process.

Such a lawsuit, which is not atypical of many filed in analogous
contexts, is precisely the type of litigation that every day threatens to
undermine, rather than advance, the laudable objectives of the
antidiscrimination laws by causing the courts and the public alike to
view even the most meritorious claims with suspicion. The district
court obviously recognized this lawsuit for what it was, and we do,
as well.

                     21
Accordingly, the judgment of the district court is affirmed.

AFFIRMED

                    22
