Opposition Brief — Henn v. National Geographic Society

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

No. 87-558 | | nov 4 wer

IN THE | ah

Supreme Court of the United States

OCTOBER TERM, 1987

ROBERT R. HENN, J. ROBERT KELLY,

ROBERT W. HORAN and RICHARD H. LEHMAN,

Petitioners,

NATIONAL GEOGRAPHIC SOCIETY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

NATIONAL GEOGRAPHIC SOCIETY

MORGAN D. HODGSON

(Counsel of Record)

JANICE BARBER

STEPTOE & JOHNSON

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-3000

Counsel for Respondent

November 4, 1987

WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

. QUESTION PRESENTED

Whether the court of appeals correctly held, as a mat-

ter of law, that the factual contentions asserted by peti-

tioners, even if proven, would not establish that their

early retirements were coerced in violation of the Age

Discrimination in Employment Act.

TABLE OF CONTENTS

Page

meee ERO te ................_...... i

pf OS RS gee ie i tte | iv

i ye 6 i ee 1 2

REASONS FOR DENYING THE WRIT ~--_--- Baticattens 5

I. THIS CASE DOES NOT PRESENT AN ISSUE

AS TO THE PROPER STANDARD FOR CON-

SIDERING THE LAWFULNESS OF VOLUN-

TARY EARLY RETIREMENT PROGRAMS

i See MOEN oe keane enna 6

A. No Conflict Is Presented as to the Validity of

Voluntary Early Retirement Programs-_-__-_ 7

B. No Conflict Is Presented as to Determina-

tion of Constructive Discharge __________~_ 9

II. SUMMARY DISPOSITION OF THIS CASE

7) Sey OF |) ee 11

I 16

(iii)

TABLE OF AUTHORITIES

Cases Page

Ackerman v. Diamond Shamrock Corp., 670 F.2d

CS FE Cie SOR) cndecasdaseuasaneduennas 7,12, 14

Alicea Rosado v. Garcia Santiago, 562 F.2d 114

Be RS yi ht et ae ee pe meee ee 9

Black v. Cutter Laboratories, 351 U.S. 292 (1956) - 11

Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th

Cir. 1985), cert. denied, 106 S. Ct. 1461 (1986)_ 9, 12,

Buckley v. Hospital Corp. of Am., 758 F.2d 1525

Pepe Cte; See nee ee coke e ade eens. 9

Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986) __- 5

Coburn v. Pan Am. World Airways, 711 F.2d 339

(D.C. Cir.), cert. denied, 464 U.S. 994 (19838) __ 7

Dale v. Chicago Tribune Co., 797 F.2d 458 (7th

Cir. 1986), cert. denied, 107 Ct. 954 (1987)____ 13, 14

Dorsch v. L.B. Foster Co., 782 F.2d 1421 (7th Cir.

cE aid i opp ea rg Send As Say Ste Oa ose a's PEACE 13

Gray v. New England Tel. & Tel. Co., 792 F.2d 251

COE Rs Se aS cease eat ones eedaa wees 7

Guthrie v. J.C. Penney Co., 803 F.2d 202 (5th Cir.

ND a he aid ae ae ee eins ene 9,14

Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th

Se. RR Beds ws as sack aha airbases ean lan koran ceding aes 14

Kelleher v. Flawn, 761 F.2d 1079 (5th Cir. 1985) — 14

Muller v. United States Steel Corp., 509 F.2d 923

(10th Cir.), cert. denied, 423 U.S. 825 (1975) _- 9

Paolillo v. Dresser Indus., 821 F.2d 81 (2d Cir.

TO oie eer oe ae 8

Toussaint v. Ford Motor Co., 581 F.2d 812 (10th

Gann, SEE Verna kere ores net ee ieee

William v. Caterpillar Tractor Co., 770 F.2d 47

eh Gan: Seen ones car kebe ee eebawbek pen 9

TABLE OF AUTHORITIES—Continued

Statutes and Regulations Page

Age Discrimination in Employment Act, 29

U.S.C.A. §§ 621-634 (West 1985 & Supp. 1987) -passim

20 UEC. TGS CT) UR) CRUSE nnn ene cccewccae 7

20 C.F.R. & UCSB. BE) CESS 2 ~ Woh ini cccessccns 7

Rule 36, Federal Rules of Civil Procedure ------ 12

Periodical

Comment, Constructive Discharge Under Title VII

and the ADEA, 53 U. Chi. L. Rev. 561 (1986) -- 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-558

—_——+

ROBERT R. HENN, J. ROBERT KELLY,

ROBERT W. HORAN and RICHARD H. LEHMAN,

Petitioners,

Vv.

NATIONAL GEOGRAPHIC SOCIETY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

NATIONAL GEOGRAPHIC SOCIETY

Respondent National Geographic Society (the “Soci-

ety’)* respectfully requests that this Court deny the

petition for a writ of certiorari seeking review of the

judgment of the United States Court of Appeals for the

Seventh Circuit in this case.”

1 National Geographic Society is a corporation. It does not have

a parent corporation and is not publicly held.

2 The decision of the court of appeals is reported at 819 F.2d 824

and is reprinted in the Appendix to the Petition at pages A-1 to

A-12. The Petition will be cited herein as “Pet. at “as

COUNTERSTATEMENT

This case concerns a voluntary early retirement pro-

gram offered by the Society. The lower courts held that

the retirement program was valid, rejecting on motions

for summary judgment petitioners’ claims that the So-

ciety discriminated against them in violation of the Age

Discrimination in Employment Act (“ADEA”), 29

U.S.C.A. $$ 621-634 (West 1985 & Supp. 1987). Both

courts examined the facts drawing all reasonable infer-

ences favorable to petitioners. Those undisputed facts are

as follows:

The Society offered the voluntary retirement program

to all employees in its Advertising Division over age 55.

Pet. at C-1. The retirement program was offered, on the

advice of the Society’s pension consultants, as part of a

plan to streamline and restructure the Advertising Divi-

sion, which had experienced a sharp drop in revenues in

the preceding year. Jd. at C-3, D-4.*

The Society’s President, Gilbert Grosvenor, wrote to the

eligible employees on June 21, 1983, describing the en-

hanced retirement benefits being offered to those who

elected to retire.‘ Grosvenor’s letter emphasized repeat-

edly the voluntary nature of the offer and granted eligible

employees more than two months, until September 1,

1983, to decide whether to accept the offer.’ The Society

did not encourage any employee to accept the offer; in-

stead, each offeree was told that his decision was a per-

3 See also Letters of June 21, 1983, from Gilbert Grosvenor, Presi-

dent of the Society, to eligible employees (hereinafter “Grosvenor

Letters”); Defendant’s Requests for Admissions 718-19 and

Plaintiffs’ Response to Requests for Admissions {{ 18-19 (herein-

after “Adm. { ——’”).

* Adm. 30. These benefits included a special supplemental pay-

ment of one year’s salary, retirement benefits calculated without any

actuarial reduction for early retirement, and extra medical and life

insurance coverage. Pet. at C-1 to C-2.

5 See Grosvenor Letters.

sonal one.° Human resource and pension executives were

made available to discuss the benefit plan with offerees,

and some eligible employees also consulted with personal

financial advisors.’

Fifteen Society employees were eligible for the retire-

ment program. Pet. at C-1. Three declined the offer; all

of them are still employed by the Society. Jd. at C-2.

Twelve employees—including the four petitioners in this

case—accepted the benefits offer and submitted forms

electing to retire, effective September 1, 1983. Jd.

Petitioners did not feel pressured to accept the offer

when they received it. Petitioner Henn, manager of the

Chicago office, admitted that, although advertising reve-

nues for that office had dropped precipitously in 1982 and

had not improved in 1983, “he felt he was free to accept

or reject the offer.”* Henn admitted that no one at the

Society ever suggested that he accept the offer and that

he decided to elect the benefits after consulting with both

the Society’s employee benefits experts and his personal

financial advisor.’

Like Henn, petitioner Kelly, who was Promotion Di-

rector for the Advertising Division and based in New

York, admitted that no one at the Society encouraged or

pressured him to take the early retirement offer.’® Kelly

also consulted with an outside financial advisor and then

decided well in advance of the deadline to elect early re-

tirement.”

Petitioner Horan, an advertising sales representative,

had experienced a decline in sales performance since 1930

® Pet. at C-3, D-4; Adm. {{ 63, 128-29, 182, 184-85, 242-46.

7 Adm. {{ 41, 45-47, 118, 170, 178, 181, 237, 241, 247.

8 Adm. {| 17-18, 21-22, 37, 58.

® Id. § 63, 41-43, 45-47.

10 Id. {{| 240-43, 246.

11 Jd. {|| 247-48.

and had consistently failed to meet his sales quota.” De-

spite these difficulties, Horan viewed the early retirement

proposal as voluntary when he elected to accept it, and

he admitted that no one at the Society encouraged him

to accept it.“* When Horan initiated a discussion of the

retirement program with his superior, the Division head,

it was emphasized that the decision was his alone.“

Petitioner Lehman was Los Angeles Regional Manager

with sales account as well as managerial responsibilities.

Both that office and Lehman individually were criticized

for failure to meet sales quotas in 1982 and periodically

through the first half of 1983.% In mid-1983, Lehman’s

performance was rated as “below average,” and he had

achieved only 48 percent of his quota. Given these prob-

lems, Lehman consulted with senior management of the

Society after receiving the early retirement offer in June

to determine what course he should follow.'® Not one of

these officers—including Society President Grosvenor—

ever encouraged Lehman to accept the offer."

Since their retirements, petitioners have received all

the benefits promised by the Society.1* However, nearly

a year after their decision to accept early retirement

benefits, on June 18, 1984, petitioners filed suit against

the Society in the United States District Court for the

Northern District of Illinois, Eastern Division. Petition-

ers alleged that the Society’s offer of an early retirement

program violated the ADEA. Petitioners contended that

by not urging them to reject the early retirement plan

12 Id. {J 92-93, 103, 110.

13 Td. [| 116-21.

14 Id. Vf] 127-29.

15 Td. | 151-58, 168.

16 Td. {| 170, 178.

17 Id. {{ 171-72, 178, 181-85.

18 Jd. {| 68, 133, 195, 268.

and by commenting on their failure to satisfy work per-

formance standards the Society had forced petitioners to

retire, in violation of the ADEA.

The trial court granted summary judgment against

each petitioner.’® The court held that to establish a prima

facie case petitioners had to show that their working con-

ditions were so intolerable that they had been construc-

tively discharged. Pet. at C-3. Based on its review of the

record, the trial court determined that petitioners had

produced “absolutely no evidence of ‘intolerability of

working conditions’ so as to justify any finding of con-

structive discharge.” Id.; see also id. at D-4. The court

observed that advertising was a high pressure profession

and that petitioners’ fears that they might lose their jobs

if they failed to satisfy performance standards did not

make their jobs intolerable. Jd. at C-4, D-4.

The court of appeals affirmed. It held that “[elach

person’s decision to retire was his own, and any pressure

he felt was a product of the downturn in sales and the

risks of a salesman’s job.” Jd. at A-2.

REASONS FOR DENYING THE WRIT

The decision of the court of appeals is a _ straight-

forward application of this Court’s holding in Celotex

Corp. v. Catrett, 106 S. Ct. 2548 (1986). There the

Court held that “the plain language of Rule 56(c) man-

dates the entry of summary judgment .. . against a

party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”

Id. at 2552-53. In this case that element is whether peti-

tioners’ retirements were coerced. No question is raised

by this case as to the standard by which voluntariness of

19 The trial court’s decision of March 12, 1986, granted summary

judgment against petitioners Henn and Kelly. Pet. at C-1 to C-5.

The trial court’s second decision, dated September 2, 1986, granted

summary judgment against petitioners Horan and Lehman. 7d. at

D-1 to D-4.

” |

retirement is to be judged. Moreover, the court of ap-

peals’ application of that standard to the facts, and its

correct determination that those facts were insufficient

to show that petitioners’ retirements were coerced, raise

no significant issues of federal law. This case thus does

not warrant grant of a writ of certiorari.

I. THIS CASE DOES NOT PRESENT AN ISSUE AS

TO THE PROPER STANDARD FOR CONSIDERING

THE LAWFULNESS OF VOLUNTARY EARLY RE-

TIREMENT PROGRAMS UNDER THE ADEA

The court of appeals’ conclusions as to whether peti-

tioners could support their claim of constructive discharge

were concisely stated: petitioners’ evidence simply did

not give rise to a reasonable inference that their retire-

ments were coerced. Pet. at A-11. Petitioners attempt to

transform this routine factual determination into a ques-

tion of substantial legal significance, seeking this Court’s

review of the standards for the lawfulness of voluntary

early retirement programs and for constructive discharge.

No such issues are raised by this case.

The court of appeals held, consistent with the decisions

of other circuits, that early retirement programs are

valid when they are voluntary. Petitioners thus err in

contending that the court of appeals imposed a divergent

standard under which every early retirement program is

valid as a matter of law. The court of appeals further

held that whatever standard is used to determine the

voluntariness of the offer, the evidence in this case did

not present a triable issue of fact as to voluntariness.

The court of appeals did not, as petitioners claim, impose

a stringent new standard in conflict with decisions of the

other circuits. Nor did the court of appeals require peti-

tioners to establish that their employment would have

been terminated had they not elected to retire. Instead,

the court of appeals properly applied existing law re-

garding voluntary early retirement programs and con-

structive discharge in granting summary judgment.

A. No Conflict Is Presented as to the Validity of Vol-

untary Early Retirement Programs

An early retirement program, when offered without

coercion to accept it, is lawful. The courts of appeals

consistently have approved as valid under the ADEA

early retirement programs that operated in a manner

similar to that offered by the Society.2° Moreover, the

Equal Employment Opportunity Commission has promul-

gated regulations that expressly recognize the validity of

voluntary early retirement programs.”

Petitioners erroneously suggest that the court of ap-

peals’ decision is in conflict with this line of cases. They

mischaracterize that decision as holding that every early

retirement is a “boon” as a matter of law. See Pet. at

14-16. The court did not so hold. Instead, while noting

that in general an offer of incentive to retire early is a

benefit to the recipient, the court of appeals held that the

offer must be voluntary. Jd. at A-6. “Voluntariness” was

held by the court of appeals to be a factual issue turning

on such factors as the absence of fraud, the opportunity

to decline the offer, the time allotted for making the

choice, and the information received about the offer. 7d.

at A-7. The court of appeals did not hold that any early

retirement program—voluntary or not—was valid as a

20 See, e.g., Gray v. New England Tel. & Tel. Co., 792 F.2d 251,

255 (1st Cir. 1986); Coburn v. Pan Am. World Airways, 711 F.2d

339, 344 (D.C. Cir.), cert. denied, 464 U.S. 994 (1983); Ackerman

v. Diamond Shamrock Corp., 670 F.2d 66, 71 (6th Cir. 1982);

Toussaint v. Ford Motor Co., 581 F.2d 812, 815 (10th Cir. 1978).

21 29 C.F.R. § 1625.9(f) (1987) provides:

Neither section 4(f)(2) [29 U.S.C. § 623(f) (2) (1982)] nor

any other provision of the Act makes it unlawful for a plan to

permit individuals to elect early retirement at a specified age

at their own option.

matter of law, and its ruling is thus consistent with those

of every other circuit considering the issue.”

Nor did the court of appeals improperly ignore the

context in which the Society made its early retirement

offer. See Pet. at 11-12. Petitioners object to the court’s

statement that “the appropriate question in early retire-

ment cases [is] whether the existing conditions (ignoring

the offer of early retirement) violate the ADEA.” Id. at

A-8. Petitioners assert that this statement evidences the

court of appeals’ approval of early retirement programs

per se, without refererence to the circumstances in which

they are offered. Jd. at 11-12.

The court’s clear point, however, is that, given the fact

that a voluntary early retirement program is lawful, to

demonstrate constructive discharge the employee must

show something apart from the fact that there was a

retirement offer that renders the employer’s conduct un-

lawful. As the court expressly noted, employer conduct

that amounted to constructive discharge of the employee

would give rise to an ADEA claim whether or not the

employee elected to accept the early retirement offer. Id.

at A-8. The court of appeals thus recognized that the

appropriate inquiry in this case was whether petitioners

could support their claim of constructive discharge.

—

22 The court of appeals did express its disagreement with the

initial decision of the Second Circuit in Paolillo v. Dresser Indus.,

published in advance sheets at 813 F.2d 583 (2d Cir. 1987). That

court initially held that an offer of early retirement creates a prima

facie case of age discrimination, which the employer must rebut.

See Pet. at A-2. As petitioners acknowledge, however, the Paolillo

panel subsequently withdrew its decision. 821 F.2d 81 (2d Cir.

1987). Consistent with the decisions of the other circuits, the final

Paolillo decision treated the voluntariness of early retirement as a

factual question and assigned to the employee the obligation to

show that his retirement was coerced. Jd. at 84. Thus, no conflict

now exists among the courts of appeals on this point.

B. No Conflict Is Presented as to Determination of

Constructive Discharge

Petitioners assert that the courts of appeals are in

disarray on the issue of constructive discharge and that

the court of appeals in this case added “not only another

standard, but one so excessively onerous as to require

the demonstration of savagery.” Pet. at 17. Neither con-

tention is true.

As to the purported conflict in the circuits, the courts

of appeals have unanimously held that, at the very least,

the employee must demonstrate that his working condi-

tions were so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign.”*

Some circuits have imposed a second, stricter standard

in addition to the reasonable person test, under which the

employee must also demonstrate that his employer de-

liberately made his working conditions intolerable, forc-

ing him to quit his job.** However, this variation in the

circuits’ approach to constructive discharge does not con-

stitute a significant “disarray” warranting this Court’s

intervention.

In any event, the purported “conflict” is not at issue

in this case. Both courts below expressly applied the

minimum standard adopted by other courts of appeals

and advocated here by petitioners. See Pet. at 18 ( citing

Bourque v. Powell Mfg. Co., 617 F.2d 61, 65 (5th Cir.

23 See, e.g., Guthrie v. J.C. Penney Co., 803 F.2d 202, 207 (5th

Cir. 1986) ; William v. Caterpillar Tractor Co., 770 F.2d 47, 49 (6th

Cir. 1985) ; Buckley v. Hospital Corp. of Am., 758 F.2d 1525, 1530-

31 (11th Cir. 1985); Alicea Rosado v. Garcia Santiago, 562 F.2d

114, 119 (1st Cir. 1977) ; see generally Comment, Constructive Dis-

charge Under Title VII and the ADEA, 53 U. Chi. L. Rev. 561, 563

(1986).

24 See, e.g., Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th

Cir. 1985), cert. denied, 106 S. Ct. 1461 (1986) ; Muller v. United

States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423

U.S. 825 (1975).

See nt

1980)). The district court required petitioners to show

that “a ‘reasonable person’ in the employee’s position

would have felt compelled to resign.” Jd. at C-3 (citing

Bourque, 617 F.2d 61).%° The court of appeals approved

the application of the less stringent standard. Jd. at A-8

to A-9. As petitioners concede, id. at 17 n.24, the court

of appeals expressly declined to decide whether to adopt

the stricter, two-part test. Id. at A-9. It did so because

under any articulation of the standard petitioners’ evi-

dence was insufficient to raise a genuine issue for trial.

See id. at A-11.

Petitioners’ erroneous assertion that the court of ap-

peals applied a uniquely onerous standard in this case is

based on a single isolated sentence of the decision. In

the context of determining whether petitioners’ decisions

to elect early retirement were voluntary, the court of

appeals explained that a difficult choice between two de-

sirable options—continued employment and early retire-

ment—did not make the program involuntary. Id. at

A-7. To underscore this point, the court of appeals ob-

served that petitioners “could prevail only by showing

that the Society manipulated the options so that they

were driven to early retirement not by its attractions but

by the terror of the alternative.” Id. at A-7 to A-8. De-

spite this language, however, the court of appeals did not

hold petitioners to such a showing. Instead, it tested

petitioners’ evidence by the minimum applicable standard

and found it patently insufficient. Jd. at A-9 to A-11.

Petitioners’ final argument concerning the legal stand-

ard applied in this case is a fabrication. They complain

that they were required to prove they would have been

fired had they not elected to retire. Jd. at 12-13. No

such requirement was imposed by the courts below. In

25 The district court also referred to the stricter, two-part stand-

ard. Id. at C-3 (citing Bristow, 770 F.2d at 1255). However, the

district court clearly did not apply the stricter standard, id. at C-3

to C-5, D-2 to D-4, nor do petitioners claim here that it did so.

evaluating petitioners’ evidence, the court of appeals

stated that the “reasonable inferences from this record

would not allow a jury to infer that the plaintiffs would

have been fired (in violation of the ADEA) had they

turned down the offer of early retirement.” Jd. at A-11.

This statement responds to petitioners’ own arguments to

the court of appeals regarding the sufficiency of the evi-

dence, in which they contended that their decisions to

retire were coerced because they feared they would be

fired if they declined to take early retirement.** The

court of appeals was not applying an additional, onerous

standard, but merely commenting on petitioners’ evidence

and the inferences they believed it supported.

Petitioners ground their arguments to this Court on

isolated statements of the court of appeals taken out of

context. However, “[t]his Court ... reviews judgments,

not statements in opinions.” Black v. Cutter Laboratories,

351 U.S. 292, 297 (1956). The judgment here raises no

issue as to applicable legal standards, and the petition

should therefore be denied.

II. SUMMARY DISPOSITION OF THIS CASE WAS

APPROPRIATE

The lower courts’ evaluation of the evidence under the

proper legal standard is a fact-based question that does

not warrant review by this Court. In any event, sum-

mary disposition of this case was required by this Court’s

decision in Celotex, because petitioners failed to support

their constructive discharge claim.

Indeed, the trial court found after careful review of

the record that petitioners had proffered “absolutely no

evidence of ‘intolerability of working conditions’ so as to

justify any finding of constructive discharge.” Pet. at

C-3. The district court’s conclusions were well founded.

It relied throughout both opinions upon unequivocal ad-

26 Brief on Behalf of Plaintiffs-Appellants at 29.

missions made by petitioners in response to Requests for

Admissions filed by the Society pursuant to Rule 36 of

the Federal Rules of Civil Procedure. Those factual con-

cessions were totally at odds with petitioners’ construc-

tive discharge claim. See id. at A-9.

Petitioners’ effort to demonstrate intolerability of work-

ing conditions had two basic themes. First, petitioners

complained that, having offered its early retirement plan,

the Society “remained silent,” failing to urge petitioners

not to accept its offer. Id. at C-3 to C-4, D-2, D-3. Peti-

tioners all conceded, however, that they felt no pressure

to accept the early retirement offer when they received

it, that the terms of the offer made clear that it was

voluntary, and that no one at the Society ever pressured

them to accept the offer.*7 Indeed, petitioners conceded

that the three eligible Advertising Division employees

who elected not to take early retirement remain employed

by the Society. Pet. at C-3.

The courts below recognized that there is no obligation

on employers who offer early voluntary retirement also to

discourage acceptance of it. Jd. at A-9, A-11, D-3.% As

those courts correctly held, no reasonable person would

conclude that working conditions were intolerable because

the Society objectively presented its retirement offer and

left the decision to accept or decline entirely up to the

employee.

Petitioners’ second theme was that they were under

pressure to achieve work performance standards within

the Advertising Division. Petitioners made no effort to

establish that these performance pressures were in any

27 Adm. { 34, 36, 43, 63, 116-17, 120-21, 171-72, 178, 193, 234,

236, 246.

28 In fact, even urging acceptance of an early retirement offer (a

factor that plaintiffs concede was not present here) may not consti-

tute constructive discharge. See Bristow, 770 F.2d at 1256;

Ackerman, 670 F.2d at 68, 69.

ne |

sense age-based. The district court noted,” and the court

of appeals agreed,® that performance pressures are com-

mon in the advertising business. “Selling is a risky pro-

fession, and it does not make a salesman’s job unbearable

to remind him that he must produce and that there are

penalties for failure.” Jd.*‘ The evidence on which peti-

tioners rely is thus totally insufficient to give rise to an

inference of intolerable working conditions.

For example, petitioner Horan grounds his claim of

constructive discharge in part upon critical performance

memoranda written by his supervisor. However, Horan—

who failed to achieve his quotas for three consecutive

years—made no claim that the criticisms were inaccurate

or unwarranted and no showing that they were in any

way connected with his age. See Pet. at D-2 to D-3.*

Moreover, Horan candidly conceded that he was not sin-

gled out for criticism, but that other employees, includ-

ing one whe declined early retirement and remains em-

ployed by the Society, were similarly criticized for failure

to meet performance standards.* Ultimately, Horan re-

lies on his own subjective feelings that “young people

29 Pet. at C-4, D-4.

30 Td. at A-9.

31 Many circuit court decisions confirm the correctness of this

view. See, e.g., Dale v. Chicago Tribune Co., 797 F.2d 458, 463

(7th Cir. 1986) (employee required to meet legitimate expectations

of employer), cert. denied, 107 S. Ct. 954 (1987); Dorsch v. L.B.

Foster Co., 782 F.2d 1421, 1426 (7th Cir. 1986) (selection of em-

ployees to be retained on the basis of performance-related criteria

appropriate) ; Bristow, 770 F.2d at 1255-56 (pressure created by

larger size territory than that of other managers did not create

intolerable working conditions).

32 In any event, an employee’s decision to quit his job because his

performance evaluations are poor does not constitute constructive

discharge. Bristow, 770 F.2d at 1255-56.

33 See Adm. | 82.

[were] being favored,” drawn from his strained inter-

pretation of conversational fragments. Pet. at F-8. Ho-

ran’s subjective perceptions do not support a reasonable

inference that his retirement was coerced.”

Similarly, petitioner Lehman’s claims rested on state-

ments allegedly made by his superior about his sales per-

formance. However, Lehman failed to dispute this assess-

ment of his work, and he admitted that he failed to meet

his sales quotas in 1982 and was again significantly be-

hind his quota when offered the early retirement oppor-

tunity in 1983. See Pet. at D-3 to D-4.*° Lehman also

alleged that a personality conflict with his supervisor,

William Hughes, made continued employment untenable.

Pet. at F-10 to F-13. The district court held, however,

that “there is no'demonstrated nexus between anything

Hughes did and the intent, preparation and offering of

the early retirement proposal.” Jd. at D-4. Thus, Leh-

man’s personal difficulty with Hughes did not give rise

to a reasonable inference of discrimination.”

Petitioner Henn made no claim of personal difficulties

in connection with his job prior to the offer. His allega-

tion of intolerable working conditions was based solely

on a feeling that “he wasn’t wanted.” Pet. at C-4. Henn

reached that conclusion when the Society did not accept

34 See Kellehe» v. Flawn, 761 F.2d 1079, 1086 (5th Cir. 1985) ;

cf. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)

(no constructive discharge where employee is “unreasonably sensi-

tive to his working environment”). By definition, the “reasonable

person” standard does not turn on an employee’s subjective reaction

to employment conditions, but on the reaction of a hypothetical

“reasonable” employee in his position. Guthrie, 803 F.2d at 207.

35 Although Lehman vaguely touted his “success” in 1983, Pet.

at F-10 to F-11, he admitted in the district court proceedings that

at the time the early retirement offer was made he was far behind

his sales quota and that his performance was ranked “below aver-

age.” Adm. § 163; Pet. at F-12.

36 See Dale, 797 F.2d at 465 n.9; Ackerman, 670 F.2d at 70.

his suggestion that the deadline for acceptance of the

Division-wide early retirement offer be extended eighteen

months for him alone. Id. The district court correctly

determined that this evidence did not support an infer-

ence of intolerable working conditions. Jd. at C-4 to C-5.

Kelly’s evidence of forced retirement was virtually non-

existent. Kelly believed the Society was trying to “get[]

rid of some of the older people,” because Hughes—who

was not even Kelly’s supervisor—was very demanding of

other employees. Id. at F-7 This “foreboding” clearly

did not render Kelly’s working conditions intolerable un-

der an objective standard.

Although petitioners assert that the courts below failed

to consider all the evidence, they do not identify a single

item of material evidence that the courts did not consider.

See id. at 20-21. Drawing every reasonable inference in

petitioners’ favor, the courts below correctly concluded

that petitioners’ evidence was insufficient to support their

claim of constructive discharge. Id. at A-11, C-3, D-4.

The most that can reasonably be inferred from that evi-

dence is that petitioners had to choose between inevitable

job tensions that all employees face and the immediate

financial incentives of the voluntary early retirement of-

fer. The admissions made by petitioners establish that

the decision to retire was their own. They struck a bar-

gain to relinquish their employment and accept the offer,

the benefits of which they are now receiving. Review of

the evidence by this Court is not warranted.

CONCLUSION

For all of the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

MORGAN D. HopGsoNn