                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1156

                   JORGE VEGA AND EUSEBIO LEON,

                     Plaintiffs, Appellants,

                                v.

                      KODAK CARIBBEAN, LTD.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                                        

                                             

                              Before

                    Torruella, Selya and Cyr,

                          Circuit Judges.
                                        

                                             

     Carlos  F. Lopez and Maria Del C. Gomez-Cordova on brief for
                                                    
appellants.
     Carlos  V.  J. Davila,  Jacqueline  D.  Novas, and  Fiddler,
                                                                 
Gonzalez &amp; Rodriguez on brief for appellee.
                    

                                             

                         August 24, 1993

                                             

          SELYA, Circuit  Judge.  William Shakespeare  once wrote
          SELYA, Circuit  Judge.
                               

that  "parting  is  such sweet  sorrow."    In  this case,  which

requires  us to mull the circumstances  under which an employee's

"early retirement" can be considered a  "constructive discharge,"

plaintiffs'  parting with  their  longtime employer  proved  more

sorrowful than sweet.   When plaintiffs sued, the district  court

added to their pain,  granting the employer's motion  for summary

judgment.  We can offer little comfort.

                                I
                                 

                            Background
                                      

          Consistent  with the method of  Fed. R. Civ.  P. 56, we

draw  upon the  undisputed  facts  to  set  the  stage  for  what

transpired.

          Defendant-appellee   Kodak   Caribbean,  Ltd.   (Kodak)

decided  to downsize its operations in Puerto Rico.  To this end,

it announced  the availability of a  voluntary separation program

(the  VSP).1   On  September 15,  1989, Kodak  held a  meeting to

explain the VSP to its local work force.  The company distributed

descriptive documents to virtually all Kodak employees, save only

for  certain managerial and human resources personnel, regardless

of age or  years of service.   The written materials  spelled out

the benefits  afforded, the method of  calculating severance pay,

and how the program would be implemented.

                    

     1The record reflects that  Kodak's parent company decided to
slash costs by reorganizing  its operations throughout the United
States  and, consequently,  promulgated the  VSP on  a nationwide
basis.  The Puerto Rico reduction in force was part and parcel of
this larger reorganization.

                                2

          Kodak encouraged workers to participate in the VSP, but

did not  require them to do so.  Withal, the company informed all

its  employees  that  if  substantially   fewer  than  twenty-six

individuals opted to enter the VSP, others would be reassigned or

furloughed in order to reach the desired staffing level.

          Two veteran  employees, Jorge  Vega  and Eusebio  Leon,

were among  those who  chose to  participate in the  VSP.   After

signing  an election  form on  October 4,  1989, Leon  received a

lump-sum  severance payment  of $28,163.16  plus other  benefits.

Vega  followed suit on October 10, 1989, executing a similar form

and receiving a $52,671.00 severance payment.  The men retired on

the dates designated in  their respective election forms.   At no

time did either man ask to revoke his election or offer to refund

his severance payment.

          In 1990,  Vega and Leon brought  separate suits against

Kodak, each alleging discrimination  on the basis of age.   Their

complaints, which invoked  the Age  Discrimination in  Employment

Act  (ADEA), 29  U.S.C.    621-634  (1988 &amp; Supp.  III 1991), and

certain Puerto Rico statutes, charged that Kodak's implementation

of the VSP violated the law.  The district court consolidated the

two cases and, on  December 10, 1992, granted Kodak's  motion for

brevis disposition.2  This appeal ensued.
      

                    

     2Appellants'  suits triggered  the district  court's federal
question  jurisdiction.  See 28  U.S.C.   1331  (1988).  However,
                            
when  the district court disposed of the ADEA claims, the pendent
claims became subject  to dismissal  for want  of subject  matter
jurisdiction.   See United Mine  Workers v. Gibbs,  383 U.S. 715,
                                                 
726  (1966) ("[I]f the federal claims are dismissed before trial,
. . . the state claims should be dismissed as well."); Gilbert v.
                                                              

                                3

                                II
                                  

                       The Legal Framework
                                          

          In  a  wrongful  discharge  case under  the  ADEA,  the

plaintiff bears  the ultimate "burden  of proving that  . . .  he

would not have been fired  but for his age."  Freeman  v. Package
                                                                 

Mach. Co.,  865 F.2d 1331,  1335 (1st Cir. 1988).   Absent direct
         

evidence of purposeful age discrimination    and no such evidence

embellishes the  record before us    the familiar burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
                                             

05 (1973), initially requires that a plaintiff establish a  prima

facie  case by demonstrating that he was (i) within the protected

age  group, (ii)  meeting  the employer's  legitimate performance

expectations,  (iii) actually  or constructively  discharged, and

(iv)  replaced  by  another  individual  of  similar  skills  and

qualifications, thereby confirming  the employer's continued need

for equivalent services.   See Mesnick v. General Elec.  Co., 950
                                                            

F.2d 816,  823 (1st Cir.  1991), cert.  denied, 112  S. Ct.  2965
                                              

(1992).  When a reduction  in force is involved, a  plaintiff may

satisfy the fourth element by demonstrating that the employer did

not treat  age neutrally in shrinking its  payroll.  This lack of

neutrality may be manifested  either by a facially discriminatory

policy or by a policy which, though  age-neutral on its face, has

the  effect  of discriminating  against  older  persons, say,  by

                    

City of Cambridge,  932 F.2d  51, 67 (1st  Cir. 1991)  (similar),
                 
cert. denied,  112 S.Ct. 192  (1992); Brennan  v. Hendrigan,  888
                                                           
F.2d  189,  196  (1st Cir.  1989)  (similar).    Hence, we  focus
exclusively on appellants' ADEA claims.

                                4

leading inexorably  to the  retention of younger  employees while

similarly  situated  older  employees  are  given  their  walking

papers.  See Hebert v. Mohawk Rubber Co.,  872 F.2d 1104, 1110-11
                                        

(1st  Cir. 1989); Holt v. Gamewell Corp., 797 F.2d 36, 37-38 (1st
                                        

Cir. 1986).

          Establishing a prima  facie case creates  a presumption

that the employer unlawfully  discriminated and shifts the burden

of production to the defendant.  See Hebert, 872 F.2d at 1110-11.
                                           

At  this second stage, the  employer must rebut  the inference of

age    discrimination    by    articulating   some    legitimate,

nondiscriminatory reason for the employment action.  See Mesnick,
                                                                

950  F.2d at  823; Hebert,  872 F.2d  at 1111.   If  the employer
                         

advances the required showing, the inference originally generated

by the  prima facie case  drops from  sight.  In  that event,  it

falls upon  the plaintiff  (who bears  the  burden of  persuasion

throughout) to show that  the employer's alleged justification is

a mere pretext for age discrimination.  See Mesnick,  950 F.2d at
                                                   

823.   To  prevail  at  this  third  stage,  the  plaintiff  must

ordinarily do  more than impugn the legitimacy  of the employer's

asserted  justification; he  must  also adduce  evidence "of  the

employer's discriminatory  animus."  Id.  at 825; see  also Hazen
                                                                 

Paper Co. v. Biggins, 113 S. Ct. 1701, 1706, 1708 (1993) (stating
                    

that liability under the ADEA depends upon  whether age "actually

motivated the  employer's decision" and hesitating  to infer age-

based animus  solely "from  the implausibility of  the employer's

explanation");  cf. St. Mary's  Honor Ctr. v.  Hicks, 61 U.S.L.W.
                                                    

                                5

4782, 4785 (U.S. June 25, 1993) (holding that success in a  race-

discrimination  suit  requires  a "finding  that  the  employer's

action was the product of unlawful discrimination" and not merely

"the much different (and much lesser) finding that the employer's

explanation of its action was not believable").

          The intersection at which the burden-shifting framework

meets Rule  56 is also well mapped.  To survive summary judgment,

"a  plaintiff must establish at least a genuine issue of material

fact on every element essential to his case in chief."   Mesnick,
                                                                

950 F.2d at 825; see also Celotex Corp. v. Catrett, 477 U.S. 317,
                                                  

323  (1986);  Hebert,  872 F.2d  at  1106.    In  other words,  a
                    

plaintiff  must  adduce  some  minimally  sufficient  evidence to

support a  jury finding that he  has met his burden  at the first

stage, and again at the third stage (so long as the defendant has

met its  second-stage burden by articulating  a nondiscriminatory

reason  for  the  adverse  employment  action).    Moreover,  the

material creating  the factual dispute must  herald the existence

of  "definite,  competent  evidence" fortifying  the  plaintiff's

version of the truth.  Mesnick, 950 F.2d at 822; see also Mack v.
                                                              

Great  Atl. &amp; Pac.  Tea Co., 871  F.2d 179, 181  (1st Cir. 1989).
                           

Optimistic conjecture, unbridled  speculation, or hopeful surmise

will not suffice.  See Medina-Munoz v. R.J. Reynolds Tobacco Co.,
                                                                

896 F.2d 5, 8 (1st Cir. 1990).

          On  appeal, we  afford  plenary review  to  a grant  of

summary  judgment  and  possess  the  power   to  affirm  on  any

independently sufficient ground made manifest by the record.  See
                                                                 

                                6

Mesnick, 950 F.2d at  822; Garside v.  Osco Drug, Inc., 895  F.2d
                                                      

46, 48-49 (1st Cir. 1990).

                               III
                                  

                             Analysis
                                     

          On this  record, appellants  fall prey  to  Rule 56  at

square one, for they have failed to adduce evidence sufficient to

establish their prima facie case.  We explain briefly.

          To satisfy the  third element in the  prima facie case,

ADEA  suitors who claim to have been wrongfully ousted from their

jobs must  demonstrate that they were  actually or constructively

discharged.    Here,  appellants   concede  that  they  were  not

cashiered.   They maintain, however, that  Kodak's sponsorship of

the VSP  effected their  constructive discharges by  forcing them

into  an  unpalatable  (and  unwarranted)  choice  between  early

retirement and dismissal.3   The facts of record, fused  with the

appropriate legal standard, belie the charge.

          Mere  offers  for  early  retirement,  even those  that

include attractive  incentives designed to  induce employees  who

might otherwise stay on  the job to separate from  the employer's

service,  do not  transgress  the ADEA.    See Henn  v.  National
                                                                 

Geographic Soc'y, 819 F.2d 824, 828 (7th Cir.) (characterizing an
                

early retirement package  as "a  boon" to the  recipient and  not

                    

     3We  use  the euphemism  "early  retirement"  in its  broad,
nontechnical  sense to include  any employer-sponsored  plan that
provides  a  special  benefit to  an  employee  in  return for  a
voluntary  decision  to withdraw  from  active  employment at  an
earlier-than-anticipated time.  The VSP is such a plan.

                                7

automatically  indicative of  age discrimination),  cert. denied,
                                                                

484  U.S. 964 (1987); see also Hebert,  872 F.2d at 1111; Schuler
                                                                 

v. Polaroid  Corp.,  848 F.2d  276,  278  (1st Cir.  1988).    To
                  

transform  an  offer  of  early retirement  into  a  constructive

discharge,  a plaintiff must show that the offer was nothing more

than a charade, that  is, a subterfuge disguising the  employer's

desire to purge plaintiff from the ranks because of his age.  See
                                                                 

Hebert, 872 F.2d  at 1111.   Under this  dichotomy, offers  which
      

furnish  employees  a  choice  in  name  only  are  impermissible

because,  in the  final  analysis, they  effectively vitiate  the

employees' power to choose work over retirement.  Phrased another

way,  the law regards as the functional equivalent of a discharge

those  offers of early retirement  which, if refused, will result

in work  so  arduous or  unappealing,  or working  conditions  so

intolerable,  that a  reasonable person  would feel  compelled to

forsake his job  rather than  to submit  to looming  indignities.

See Calhoun v. Acme Cleveland Corp., 798 F.2d 559,  561 (1st Cir.
                                   

1986); Alicea Rosado v.  Garcia Santiago, 562 F.2d 114,  119 (1st
                                        

Cir.  1977).   In terms  of this  standard, a  plaintiff who  has

accepted an  employer's offer to retire can  be said to have been

constructively discharged  when the offer presented  was, at rock

bottom,  "a  choice between  early  retirement  with benefits  or

discharge  without   benefits,"  or,   more  starkly   still,  an

"impermissible take-it-or-leave-it choice  between retirement  or

discharge."  Hebert, 872 F.2d at 1113.
                   

          Kodak's  promulgation of the VSP cannot be said to have

                                8

presented Vega and  Leon with this sort of  Hobson's choice.  The

offer was cast as one to be accepted or rejected at an employee's

will.  The contract and explanatory memorandum contained numerous

words and phrases  alerting the reader  to its voluntary  nature.

Moreover,  the  circumstances of  the  offer  were not  coercive:

employees had  six weeks to mull the offer's ramifications before

making a decision; they were encouraged to gather information and

ask questions; and they retained the right to revoke the election

for  a  period of  time.   An  employer's  effort to  construct a

pressure-free environment conducive to calm decisionmaking in the

employee's  enlightened  self-interest   often  constitutes   the

hallmark of a  real offer as opposed to an  ultimatum.  See Henn,
                                                                

819 F.2d at  828-29 (considering similar factors in analyzing the

voluntariness of an early retirement plan).  So it is here.

          Finally, nothing in the  record indicates that, for any

particular  employee,  refusing  early  retirement  meant  either

discharge or the imposition of working conditions so abhorrent as

to  justify resignation.   To be  sure, Kodak said  that it would

likely  furlough  a number  of  employees if  not  enough workers

elected to  depart voluntarily.   But, three things  palliate the

inference  that appellants seek to draw from this statement:  (1)

the company simultaneously announced, both orally and in writing,

that if a sufficient complement participated in the VSP, the need

to thin the ranks  unilaterally would never arise; (2) it did not

directly  or indirectly  indicate  which  particular  individuals

would  be tapped should layoffs prove to be necessary; and (3) it

                                9

never threatened that persons ultimately selected for involuntary

separation would be treated harshly.4

          Notwithstanding the formidable  array of  circumstances

weighing  in   favor  of  a  finding   that  appellants  resigned

voluntarily,  appellants  assert  that  they  were constructively

discharged  because  they believed  that  rejecting  the VSP  was
                                  

tantamount to forfeiting their jobs.  We discern no genuine issue

of  material  fact;  assuming  that appellants'  mindset  was  as

stated,  their  conclusion  does   not  follow.    An  employee's

perceptions cannot  govern a claim of  constructive discharge if,

and  to the extent that,  the perceptions are  unreasonable.  See
                                                                 

Calhoun, 798 F.2d at 561.  Were the rule otherwise, any  employee
       

who quit,  and  thereafter  thought better  of  it,  could  claim

constructive  discharge  with  impunity.    The  law,  therefore,

demands that  a disgruntled ex-employee's professed  belief about

the likely consequences of refusing an offer for early retirement

be judged by an "objective standard," the focus of  which is "the

reasonable state  of mind  of the  putative discriminatee."   Id.
                                                                 

(citations and internal  quotation marks omitted).   In light  of

the uncontroverted facts  of record here,  appellants' impression

that the  ignominy of firing  comprised the  only alternative  to

accepting the VSP was thoroughly unreasonable.

                    

     4For   example,  Kodak   never  warned   that  involuntarily
separated employees  would be  stripped of severance  benefits or
treated  less favorably than those persons who chose to enter the
VSP.  And, moreover, the company suggested that attempts would be
made  to  offer   involuntarily  separated  employees  comparable
positions  elsewhere in  the  Kodak organization,  as opposed  to
simply cutting them loose.

                                10

          In an  attempt to coat their subjective  beliefs with a

patina  of  plausibility,  appellants  ignore the  fact  that  no

firings  or  layoffs  ever  materialized, and,  instead,  tout  a

supervisor's statement  that  Kodak shelters  "no  sacred  cows."

This statement, directed not toward  Vega and Leon in  particular

but toward Kodak's entire  work force, articulated an unfortunate

but  hardly remarkable  condition of  working life:   broad-based

subjugation to the risk of future termination is common fare in a

depressed  economic  climate.    It, alone,  is  insufficient  to

constitute constructive  discharge.  See Bodnar  v. Synpol, Inc.,
                                                                

843 F.2d 190, 193-94 (5th Cir.) (holding that the risk, shared by

all company employees, that appellants' posts would be eliminated

if too few accepted an early retirement plan did not constitute a

"working condition[] . . . so intolerable as to force appellants'

resignation"), cert.  denied, 488  U.S. 908 (1988);  Calhoun, 798
                                                            

F.2d  at 561  (stating  that an  employee  is not  "guaranteed  a

working environment free from  stress") (quoting Bristow v. Daily
                                                                 

Press, Inc., 770 F.2d  1251, 1255 (4th Cir. 1985),  cert. denied,
                                                                

475 U.S. 1082 (1986)).

          In fine, the record is  barren of evidence competent to

support an  inference that  Kodak placed appellants  "between the

Scylla of  forced retirement  [and] the Charybdis  of discharge."

Hebert, 872 F.2d  at 1112.  Rather, Kodak  asked its employees to
      

choose between immediate  severance with its associated  benefits

or continued work with its inherent risks.  As the alternative to

separation from the employer's  service was not so onerous  as to

                                11

compel  a  reasonable  person's  resignation,  appellants  cannot

convincingly claim to have been constructively discharged.

                                IV
                                  

                            Conclusion
                                      

          We need go no further.  Although Kodak has assembled an

armada  of additional  asseverations in  support of  the decision

below, addressing those points would serve no useful purpose.  It

suffices to say  that, since  appellants failed to  limn a  prima

facie  case   of   age  discrimination,5   the   district   court

appropriately entered summary judgment in the defendant's favor.

Affirmed.
        

                    

     5Because appellants  had the burden of  adducing evidence on
each  of the  four  elements  of  their  prima  facie  case,  the
deficiency  we have  described is  fatal to  their suits.   Thus,
although we note in passing that their prima facie case flounders
in  another respect as  well   the record  does not support their
assertions that  Kodak  failed  to  treat age  neutrally  in  its
authorship and  implementation of the  VSP   we  do not pause  to
elucidate the point. 

                                12
