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_________________________
"parting
requires
is
such sweet
William Shakespeare
sorrow."
In
once wrote
this case,
which
"constructive discharge,"
plaintiffs'
parting with
their
longtime employer
proved
more
court
for summary
I
I
_
Background
Background
__________
Consistent
draw
upon the
undisputed
facts
to
set
Fed. R. Civ.
the
P. 56, we
stage
for
what
transpired.
Defendant-appellee
decided
Caribbean,
Ltd.
it announced
(the
Kodak
VSP).1
the availability of a
On
September 15,
(Kodak)
To this end,
1989, Kodak
held a
meeting to
of age or
years of service.
the benefits
spelled out
employees
that
if
substantially
fewer
than
twenty-six
employees, Jorge
those who
an election
chose to
form on
severance payment
Vega
and Eusebio
participate in the
October 4,
of $28,163.16
VSP.
1989, Leon
plus other
Leon,
After
received a
benefits.
At no
time did either man ask to revoke his election or offer to refund
his severance payment.
In 1990,
the Age
Discrimination in
Act
621-634
(ADEA), 29
U.S.C.
Their
Employment
brevis disposition.2
______
motion for
____________________
II
II
__
The Legal Framework
The Legal Framework
___________________
In
wrongful
plaintiff bears
discharge
case under
of proving that
Freeman
_______
record before us
the
ADEA,
the
. . .
he
v. Package
_______
Absent direct
prima
expectations,
meeting
the employer's
(iii) actually
legitimate performance
or constructively
discharged, and
(iv)
replaced
by
another
individual
of
similar
skills
and
denied, 112
______
in force is involved, a
S. Ct.
2965
plaintiff may
effect
This lack of
payroll.
of discriminating
against
older
persons, say,
by
____________________
leading inexorably
similarly
papers.
situated
to the
older
retention of younger
employees
are
given
employees while
their
walking
(1st
Cir. 1989); Holt v. Gamewell Corp., 797 F.2d 36, 37-38 (1st
____
______________
Cir. 1986).
Establishing a prima
that the employer unlawfully
age
discrimination
by
a presumption
articulating
the inference of
some
legitimate,
See Mesnick,
___ _______
950
the employer
F.2d at
823; Hebert,
______
872 F.2d
at 1111.
If
falls upon
drops from
the plaintiff
sight.
(who bears
the
To
prevail
ordinarily do
asserted
at
that event,
burden of
it
persuasion
In
this
third
See Mesnick,
___ _______
stage,
the
justification; he
employer's discriminatory
must
animus."
also adduce
Id.
___
950 F.2d at
plaintiff
must
of the employer's
evidence "of
at 825; see
___
the
also Hazen
____ _____
Paper Co. v. Biggins, 113 S. Ct. 1701, 1706, 1708 (1993) (stating
_________
_______
that liability under the ADEA depends upon
motivated the
based animus
explanation");
the implausibility of
to infer age-
the employer's
Hicks, 61 U.S.L.W.
_____
suit
requires
a "finding
that
the
race-
employer's
"the much different (and much lesser) finding that the employer's
explanation of its action was not believable").
Mesnick,
_______
950 F.2d at 825; see also Celotex Corp. v. Catrett, 477 U.S. 317,
___ ____ _____________
_______
323
(1986);
Hebert,
______
872 F.2d
plaintiff
must
adduce
some
support a
at
1106.
minimally
In
other words,
sufficient
evidence to
at the first
stage, and again at the third stage (so long as the defendant has
met its
reason
the
material creating
adverse
employment
a nondiscriminatory
action).
Moreover,
the
of
"definite,
competent
evidence" fortifying
the
plaintiff's
appeal, we
judgment
and
afford
plenary review
possess
the
power
to
to
a grant
affirm
of
on
any
See
___
822; Garside v.
_______
F.2d
III
III
___
Analysis
Analysis
________
On this
record, appellants
fall prey
to
Rule 56
at
jobs must
discharged.
cashiered.
the VSP
into
We explain briefly.
an
Here,
appellants
actually or constructively
concede
effected their
unpalatable
that
they
unwarranted)
not
Kodak's sponsorship of
constructive discharges by
(and
were
choice
forcing them
between
early
with the
offers
include attractive
do not
early
retirement,
incentives designed to
for
even those
induce employees
transgress
the ADEA.
See Henn
___ ____
that
who
the employer's
v.
National
________
as "a
boon" to the
recipient and
not
____________________
automatically
484
indicative of
age discrimination),
v. Polaroid Corp.,
_______________
transform
an
discharge,
848 F.2d
offer
of
276,
cert. denied,
_____ ______
278
(1st Cir.
early retirement
into
1988).
To
constructive
employer's
at 1111.
furnish
employees
because,
in the
final
Under this
choice
in
name
analysis, they
dichotomy, offers
only
are
which
impermissible
effectively vitiate
See
___
the
Phrased another
those
in work
so
intolerable,
arduous or
that a
unappealing,
reasonable person
rather than
to submit
or working
conditions
would feel
compelled to
to looming
indignities.
Cir.
of this
1977).
accepted an
In terms
standard, a
constructively discharged
so
119 (1st
plaintiff who
has
was, at rock
bottom,
"a
discharge
choice between
without
early
benefits,"
retirement
or,
more
with benefits
starkly
or
still,
an
between retirement
or
Kodak's
Hobson's choice.
The
the
employees had
circumstances of
the
to its voluntary
offer
were not
nature.
coercive:
ask questions; and they retained the right to revoke the election
for
period of
time.
An
employer's
effort to
construct a
enlightened
hallmark of a
819 F.2d at
self-interest
often
constitutes
ultimatum.
the
See Henn,
___ ____
employee,
refusing
So it is here.
retirement
meant
either
justify resignation.
likely
furlough
elected to
inference
To be
a number
of
depart voluntarily.
not
that it would
enough workers
palliate the
(1)
or indirectly
indicate
which
particular
individuals
in
voluntarily,
discharged
favor
of
appellants
because
finding
assert
they believed
array of
that
that
that
they
circumstances
appellants
resigned
were constructively
rejecting
the VSP
was
________
tantamount to forfeiting their jobs.
of
material
stated,
fact;
their
conclusion
perceptions cannot
and
assuming
and
does
not
mindset
follow.
An
thought better
with
as
employee's
unreasonable.
thereafter
was
that appellants'
govern a claim of
impunity.
of
The
it,
constructive
discharge
demands that
employee
could
law,
See
___
claim
therefore,
belief about
of mind
of the
putative discriminatee."
ignominy of firing
which is "the
comprised the
In light
Id.
___
of
appellants' impression
only alternative
to
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
patina
of
firings
plausibility,
or
layoffs
appellants
ever
supervisor's statement
Kodak shelters
hardly remarkable
ignore the
materialized, and,
that
beliefs with a
fact
that
instead,
"no
sacred
tout
no
cows."
particular
condition of
working life:
broad-based
economic
climate.
constitute constructive
It, alone,
discharge.
is
See Bodnar
___ ______
insufficient
to
v. Synpol, Inc.,
____________
843 F.2d 190, 193-94 (5th Cir.) (holding that the risk, shared by
at 561
(stating
denied, 488
______
that an
is not
Calhoun, 798
_______
"guaranteed
cert. denied,
_____ ______
inference that
"between the
Scylla of
forced retirement
at 1112.
of discharge."
benefits
As the alternative to
as to
11
compel
reasonable
person's
resignation,
appellants
cannot
IV
IV
__
Conclusion
Conclusion
__________
We need go no further.
armada
of additional
asseverations in
support of
the decision
case
of
that, since
age
appellants failed to
discrimination,5
the
limn a
district
It
prima
court
Affirmed.
Affirmed.
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