The HONORABLE MICHAEL J. DAVIS, United States District Judge for the 1

District of Minnesota, sitting by designation.

The Honorable Thomas M. Shanahan, United States District Judge for the

2

District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2738

___________

Charles G. Johnson, *

Plaintiff-Appellant, * Appeal from the United States

 v. * District of Nebraska.

Marvin T. Runyon, Postmaster *

General, U.S. Postal Service, *

Defendant-Appellee. *

*

* District Court for the 

*

*

___________

Submitted: February 11, 1998

 Filed: March 6, 1998 

___________

Before McMILLIAN and HANSEN, Circuit Judges, and DAVIS, District Judge. 1

___________

PER CURIAM.

Charles G. Johnson, a retired postal worker, appeals the judgment of

the district court in favor of his former employer, the United States

2

Postal Service (USPS), in this age discrimination case. We affirm.
-2-

Following a bench trial, the district court found the following

facts. Johnson was born in 1940 and began working for the USPS in 1960.

In his most recent position with the USPS as a tour superintendent, Johnson

supervised approximately 400 employees. Johnson's former supervisor, Mel

Shepherd, testified that he felt the higher-level supervisors were "out to

get" him and his workers (which would have included Johnson) because those

employees were part of what the higher-level supervisors referred to as the

"old regime." (Appellant's Adden. at 2.) 

In 1992, when Johnson was 52 years old, the USPS went through a major

reorganization in which all tour superintendents and some other management

positions were abolished. The USPS created a higher-level position,

entitled Manager of Distribution Operations (MDO), which required skills

additional to those previously required for the tour superintendent

position. To facilitate the reorganization, the USPS offered Johnson and

other qualified employees special early retirement packages. They had

until November 20, 1992, to decide whether or not to accept the package.

Michael Matuzek was the Manager of Processing and Distribution at the

General Mail Facility in Omaha, Nebraska, at the time of the

reorganization. He was responsible for promoting employees to the newly

created MDO positions. On November 13, 1992, Matuzek informed Johnson

that he would be considered for the new positions like everyone else and

that the most qualified candidates would be selected. At that time,

Matuzek was uncertain what other positions would be available after the

reorganization. 

On November 18, 1992, Matuzek candidly informed Johnson that he did

not intend to hire Johnson for one of the MDO positions because Johnson

lacked the requisite skills for the position. Matuzek felt Johnson was

entitled to this information because Johnson also had to make his decision

concerning the early retirement package. Matuzek testified that he told

Johnson he would still have a job with the USPS and would not suffer a

decrease in pay if he elected not to take early retirement. 
-3-

On November 20, 1992, Johnson accepted the early retirement package, though

he testified that he had not intended to retire early. In December 1992,

the MDO selections were made and staffed with persons ranging from age 36

to age 48. 

Johnson then filed suit against the USPS, alleging age discrimination

in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 633a (1994). Following the bench trial, the district court entered

judgment in favor of the USPS, concluding that Johnson had failed to make

out a prima facie case of discrimination, and dismissed Johnson's complaint

with prejudice. Johnson moved to alter or amend the judgment or in the

alternative for a new trial, but the district court denied his posttrial

motions. Johnson now appeals, arguing that the district court committed

errors of fact and law. 

A prima facie showing of age discrimination requires a demonstration

that (1) plaintiff is within the protected age group, (2) plaintiff met

applicable job qualifications and legitimate expectations of the employer,

(3) despite these qualifications, plaintiff suffered a discharge or other

adverse employment action, and (4) plaintiff was replaced by a younger

worker, Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 988 (8th Cir. 1996),

or in the reduction in force context, the plaintiff must produce some

additional evidence that age was a motivating factor in the termination,

Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir. 1997).

The district court concluded that Johnson failed to demonstrate that he

suffered an adverse employment action because he voluntarily retired. We

agree. Johnson chose to accept an early retirement package rather than to

wait and see what positions would be available following the

reorganization. 

Absent an adverse employment action, Johnson could only recover if

he demonstrated that he was constructively discharged. "'A constructive

discharge occurs when an employer renders the employee's working conditions

intolerable, forcing the employee to quit.'" Delph v. Dr. Pepper Bottling

Co. of Paragould, Inc., 130 F.3d 349,
-4-

354 (8th Cir. 1997) (quoting Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568,

574 (8th Cir. 1997)). "The conduct complained of must have been 'severe

or pervasive enough to create an objectively hostile or abusive work

environment,'" and additionally the plaintiff must "'subjectively perceive

the environment to be abusive.'" Id. (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). The district court was correct in finding

in this case that no reasonable person in Johnson's situation would have

found the working conditions to be intolerable.

We find no error of fact or law in the district court's

determination. We have considered and rejected all of Johnson's arguments,

and a more extended discussion would serve no useful purpose. Accordingly,

we affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.