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.

ORDER

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.

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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, negotiated, and accepted pursuant to a written agreement a generous package 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 generosity. 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 immediately 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 president, 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 College's endowment.

President Nelson's cost-cutting efforts included a department-bydepartment 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 College'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 treasurer, 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 Employment 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

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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, according 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 confirmed 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 "continue 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 bargain." 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 process 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 withdrawing the complaint from the EEOC. It also rejected the argument

that Blistein had waived his ADEA claim by entering into the retirement 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 different 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 agreements 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 omitted))).

 5
A.

Effective October 16, 1990, the ADEA was amended by the Older

Workers Benefit Protection Act ("OWBPA"), which provides, in relevant 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 individual, or by the average individual eligible to participate;

(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 agreement, and the agreement shall not become effective 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 subparagraph (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 agreement merely voidable, not void, and we conclude that Blistein ratified

the retirement agreement by accepting the substantial benefits provided 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 ratification theory underlying the holding in O'Shea did not survive

OWBPA's enactment.

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

_________________________________________________________________

3 Because we hold that Blistein's ratification of the retirement agreement 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 (citing 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 & Chemicals, 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 voluntary." 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 "knowing" 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 discussion 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 carefully 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 principles] 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 survives 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 agreements, 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 resignation 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 federal court because the May 20 letter only states that he would withdraw

his ADEA claim from the EEOC, Blistein would have but a Pyrrhic victory. 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 demonstrate that: (1) he is a member of the protected class, (2) he was discharged, (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 comparable 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 College 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 qualifications" 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 replacement 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 unsatisfactorily. 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 deliberately 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 demonstrate, 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 argument of pretext by the College, we agree with the district court that

Blistein also failed to demonstrate that the College's proffered nondiscriminatory rationale for its actions was merely pretext for discrimination.

 12
claims not so much that his "working conditions" were made intolerable, 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 reasonable 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 objective standard of whether a `reasonable person' in the employee's position 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 manifestly 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 College'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 decision 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 gratuitous benefits simply cannot make continued employment so intolerable 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 eligible (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

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

It was always the understanding that the practice[on postretirement 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 profitable early retirement package that included not only the postretirement health benefits, but severance pay, tuition assistance, and

other benefits as well. In effect, the June notification was an inducement 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 incentives 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 postretirement health benefits when he became 65, whereas once the decision to eliminate his position was made, it was certain that his continued 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 valuable package of benefits beyond that for which he was otherwise eligible, had ample time to consider the offer, consulted an attorney, and

ultimately signed the agreement, received the benefits, and subsequently filed an ADEA claim, claiming that he had been constructively 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.

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Because Blistein wholly failed to proffer evidence that the College'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 residence," 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 protected 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 probative 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 appropriate 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 modified form. Western Electric, 713 F.2d at 1014-15. A plaintiff in such

circumstances can establish this element of his prima facie case "either by showing that [comparably qualified] persons outside the protected 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 opportunities 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 substantially equivalent to the lowest level of those retained; and (4) the process

of selection produced a residual work force with some unprotected persons 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.

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someone outside the protected class was retained in the same position

as Blistein, merely because both positions were considered "nonessential" to the College's core academic function. Defining the positions 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 nonessential position"); id. at 4 (referring to other non-essential personnel

as "comparably situated"), does not make them the "same" for purposes of determining whether we should draw a presumption of age

discrimination from the fact that one is retained and the other abolished.

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 discrimination." 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 offering 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 consideration 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 reasonably 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

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such person Blistein identifies from outside the protected class. We

have already rejected as insufficient to raise an inference of age discrimination 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 director 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 discrimination 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 person had been retained, even though the positions being compared are

wholly dissimilar, but the retention of merely one (or even a substantial 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 evidence" 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 benchmarks 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 protected 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 employees older than [Blistein], whose salaries also exceeded the [compensation 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] termination was allegedly orchestrated because of the College's upcoming

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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 termination." Appellant's Reply Br. at 4, 5. This argument, however, is essentially 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 residence" 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 incentives 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 munificence, 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.

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Accordingly, the judgment of the district court is affirmed.

AFFIRMED

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