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

## District of Minnesota, sitting by designation. The H onorable Thomas M. Shanahan, United States District Judge for th e 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 d istrict court in favor of his former employer, the United State s 2 Postal Service (USPS), in this age discrimination case. We affirm.

## -2- Following a bench trial, the district court found the followin g 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, Johnso n supervised approximat ely 400 employees. Johnson's former supervisor, Mel Shepherd, testified that he felt the higher-leve l supervisors were "out to get" him and his workers (which would have inclu ded Johnson) because those employees were part of what the higher-level supervisors referred to as th e "old regime." (Appellant's Adden. at 2.)
In 1992, when Johnson was 52 years old, the USPS went through amajor reorganization in which all tour superintendents and some other management positi ons were abolished. The USPS created a higher-level position , entitledManager of Distribution Operations (MDO), which required skills addit ional to those previously required for the tour superintenden t position. To facilit ate the reorganization, the USPS offered Johnson and other qualified employees special early retirement packages. They ha d 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 th e reorganization. He was responsible for promoting employees to the newly createdMDO positions. On November 13, 1992, Matuzek informed Johnso n that he would be considered for the new positions like everyone else and that the most qualified candidates would be selected. At that time , Mat uzek was uncertain what other positions would be available after th e reorganization.

On Novemb er 18, 1992, Matuzek candidly informed Johnson that he did not inten d to hire Johnson for one of the MDO positions because Johnso n lacked the requisite skills for the position. Matuzek felt Johnson wa s entitled to this information because Johnson als o had to make his decision concerning the early retirement package. Matuzek testified that he told John sonhe 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, thoug h he testified that he had not intended to retire early. In December 1992, the MDO selections we re made and staffed with persons ranging from age 36 to age 48. Johnson then filed suit against the USPS, alleging age discrimi nation in violation of the Age Discrimination in Employ ment Act (ADEA), 29 U.S.C. § 633a (19 94). Following the bench trial, the district court entere d judgment in favor of the USPS, concluding that Johnson had failed to make out a prima facie case of discrimination, and dismissed Johnson's complain t with pr ejudice. Johnson moved to alter or amend the judgment or in th e 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 discrim ination requires a demonstration that (1) plaintiff is within the protected age group, (2) plaintiff me t applicable job qualifications and legitimate exp ectations of the employer, (3) despite these qua lifications, plaintiff suffered a discharge or other adverse employment action, and (4) plaintiff was replaced by a younge r worker, Hopper v. Hal lmark Cards, Inc. , 87 F.3d 983, 988 (8th Cir. 1996),
or in the reduction in force context, the plaintiff must produce som e 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 h e suffered an adverse e mployment action because he voluntarily retired. We agree. Johnson chose to accept an early retirem ent package rather than to wait a nd see what positions would be available following th e reorganization.

Absent an adverse employment action, Johnson could only recover i f he demonstrated that he was constructively discharged. "'A constructive discharge occurs when an employer renders the employee's working condition s intolerable, forcing the employee to quit.'" De lph 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 p ervasive enough to create an objectively hostile or abusive wor k environment,'" and additionally the plaintiff mu st "'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 inthis 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.