Vega and Leon v. Kodak Caribbean LTD

• Court: Court of Appeals for the First Circuit
• Decided: August 24, 1993
• Docket: 93-1156
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                                       
                              _________________________

No. 93-1156

JORGE VEGA AND EUSEBIO LEON,

                               Plaintiffs, Appellants,

                                          v.

                                KODAK CARIBBEAN, LTD.,

                                 Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

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

_________________________

                                        Before

                              Torruella, Selya and Cyr,

                                    Circuit Judges.
                                    ______________

_________________________

               Carlos  F. Lopez and Maria Del C. Gomez-Cordova on brief for
               ________________     __________________________
          appellants.
               Carlos  V.  J. Davila,  Jacqueline  D.  Novas, and  Fiddler,
               _____________________   _____________________       ________
          Gonzalez & Rodriguez on brief for appellee.
          ____________________

_________________________

                                   August 24, 1993

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

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

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

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

          plaintiffs'  parting with  their  longtime employer  proved  more

          sorrowful than sweet.   When plaintiffs sued, the district  court

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

          judgment.  We can offer little comfort.

                                          I
                                          I
                                          _

                                      Background
                                      Background
                                      __________

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

          draw  upon the  undisputed  facts  to  set  the  stage  for  what

          transpired.

                    Defendant-appellee   Kodak   Caribbean,  Ltd.   (Kodak)

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

          it announced  the availability of a  voluntary separation program

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

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

          descriptive documents to virtually all Kodak employees, save only

          for  certain managerial and human resources personnel, regardless

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

          the benefits  afforded, the method of  calculating severance pay,

          and how the program would be implemented.
                              
          ____________________

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

                                          2

Kodak encouraged workers to participate in the VSP, but

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

          its  employees  that  if  substantially   fewer  than  twenty-six

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

          furloughed in order to reach the desired staffing level.

                    Two veteran  employees, Jorge  Vega  and Eusebio  Leon,

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

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

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

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

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

          the dates designated in  their respective election forms.   At no

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

          his severance payment.

                    In 1990,  Vega and Leon brought  separate suits against

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

          complaints, which invoked  the Age  Discrimination in  Employment

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

          certain Puerto Rico statutes, charged that Kodak's implementation

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

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

          brevis disposition.2  This appeal ensued.
          ______
                              
          ____________________

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

                                          3

II
                                          II
                                          __

                                 The Legal Framework
                                 The Legal Framework
                                 ___________________

                    In  a  wrongful  discharge  case under  the  ADEA,  the

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

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

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

          evidence of purposeful age discrimination    and no such evidence

          embellishes the  record before us    the familiar burden-shifting

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

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

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

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

          expectations,  (iii) actually  or constructively  discharged, and

          (iv)  replaced  by  another  individual  of  similar  skills  and

          qualifications, thereby confirming  the employer's continued need

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

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

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

          satisfy the fourth element by demonstrating that the employer did

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

          neutrality may be manifested  either by a facially discriminatory

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

          the  effect  of discriminating  against  older  persons, say,  by

____________________

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

                                          4

leading inexorably  to the  retention of younger  employees while

          similarly  situated  older  employees  are  given  their  walking

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

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

          Cir. 1986).

                    Establishing a prima  facie case creates  a presumption

          that the employer unlawfully  discriminated and shifts the burden

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

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

          age    discrimination    by    articulating   some    legitimate,

          nondiscriminatory reason for the employment action.  See Mesnick,
                                                               ___ _______

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

          advances the required showing, the inference originally generated

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

          falls upon  the plaintiff  (who bears  the  burden of  persuasion

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

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

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

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

          asserted  justification; he  must  also adduce  evidence "of  the

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

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

          that liability under the ADEA depends upon  whether age "actually

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

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

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

5

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

          discrimination  suit  requires  a "finding  that  the  employer's

          action was the product of unlawful discrimination" and not merely

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

          explanation of its action was not believable").

                    The intersection at which the burden-shifting framework

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

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

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

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

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

          plaintiff  must  adduce  some  minimally  sufficient  evidence to

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

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

          met its  second-stage burden by articulating  a nondiscriminatory

          reason  for  the  adverse  employment  action).    Moreover,  the

          material creating  the factual dispute must  herald the existence

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

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

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

          Optimistic conjecture, unbridled  speculation, or hopeful surmise

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

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

                    On  appeal, we  afford  plenary review  to  a grant  of

          summary  judgment  and  possess  the  power   to  affirm  on  any

          independently sufficient ground made manifest by the record.  See
                                                                        ___

6

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

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

III
                                         III
                                         ___

                                       Analysis
                                       Analysis
                                       ________

                    On this  record, appellants  fall prey  to  Rule 56  at

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

          establish their prima facie case.  We explain briefly.

                    To satisfy the  third element in the  prima facie case,

          ADEA  suitors who claim to have been wrongfully ousted from their

          jobs must  demonstrate that they were  actually or constructively

          discharged.    Here,  appellants   concede  that  they  were  not

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

          the VSP  effected their  constructive discharges by  forcing them

          into  an  unpalatable  (and  unwarranted)  choice  between  early

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

          appropriate legal standard, belie the charge.

                    Mere  offers  for  early  retirement,  even those  that

          include attractive  incentives designed to  induce employees  who

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

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

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

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

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

                                          7

automatically  indicative of  age discrimination),  cert. denied,
                                                              _____ ______

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

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

          transform  an  offer  of  early retirement  into  a  constructive

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

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

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

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

          furnish  employees  a  choice  in  name  only  are  impermissible

          because,  in the  final  analysis, they  effectively vitiate  the

          employees' power to choose work over retirement.  Phrased another

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

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

          in work  so  arduous or  unappealing,  or working  conditions  so

          intolerable,  that a  reasonable person  would feel  compelled to

          forsake his job  rather than  to submit  to looming  indignities.

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

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

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

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

          constructively discharged  when the offer presented  was, at rock

          bottom,  "a  choice between  early  retirement  with benefits  or

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

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

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

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

8

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

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

          will.  The contract and explanatory memorandum contained numerous

          words and phrases  alerting the reader  to its voluntary  nature.

          Moreover,  the  circumstances of  the  offer  were not  coercive:

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

          making a decision; they were encouraged to gather information and

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

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

          pressure-free environment conducive to calm decisionmaking in the

          employee's  enlightened  self-interest   often  constitutes   the

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

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

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

                    Finally, nothing in the  record indicates that, for any

          particular  employee,  refusing  early  retirement  meant  either

          discharge or the imposition of working conditions so abhorrent as

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

          likely  furlough  a number  of  employees if  not  enough workers

          elected to  depart voluntarily.   But, three things  palliate the

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

          the company simultaneously announced, both orally and in writing,

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

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

          directly  or indirectly  indicate  which  particular  individuals

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

9

never threatened that persons ultimately selected for involuntary

          separation would be treated harshly.4

                    Notwithstanding the formidable  array of  circumstances

          weighing  in   favor  of  a  finding   that  appellants  resigned

          voluntarily,  appellants  assert  that  they  were constructively

          discharged  because  they believed  that  rejecting  the VSP  was
                                    ________

          tantamount to forfeiting their jobs.  We discern no genuine issue

          of  material  fact;  assuming  that appellants'  mindset  was  as

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

          perceptions cannot  govern a claim of  constructive discharge if,

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

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

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

          constructive  discharge  with  impunity.    The  law,  therefore,

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

          the likely consequences of refusing an offer for early retirement

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

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

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

          the uncontroverted facts  of record here,  appellants' impression

          that the  ignominy of firing  comprised the  only alternative  to

          accepting the VSP was thoroughly unreasonable.
                              
          ____________________

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

                                          10

In an  attempt to coat their subjective  beliefs with a

          patina  of  plausibility,  appellants  ignore the  fact  that  no

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

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

          This statement, directed not toward  Vega and Leon in  particular

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

          but  hardly remarkable  condition of  working life:   broad-based

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

          depressed  economic  climate.    It, alone,  is  insufficient  to

          constitute constructive  discharge.  See Bodnar  v. Synpol, Inc.,
                                               ___ ______     ____________

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

          all company employees, that appellants' posts would be eliminated

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

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

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

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

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

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

          475 U.S. 1082 (1986)).

                    In fine, the record is  barren of evidence competent to

          support an  inference that  Kodak placed appellants  "between the

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

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

          choose between immediate  severance with its associated  benefits

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

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

11

compel  a  reasonable  person's  resignation,  appellants  cannot

          convincingly claim to have been constructively discharged.

IV
                                          IV
                                          __

                                      Conclusion
                                      Conclusion
                                      __________

                    We need go no further.  Although Kodak has assembled an

          armada  of additional  asseverations in  support of  the decision

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

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

          facie  case   of   age  discrimination,5   the   district   court

          appropriately entered summary judgment in the defendant's favor.

Affirmed.
          Affirmed.
          ________

____________________

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

                                          12