Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judges WILKINSON and WILLIAMS joined.
OPINION
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 extend
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 $800,000. 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-by-department review of budgets, a hiring freeze, an across-the-board budget cut of four percent, and modifications to sick leave and vacation 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. Bli-stein 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 Bli-stein’s attorney formally apprising him that 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,
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. §§ 621-684 (West 1985 & Supp.1995), on September 17, 1993. The College in turn filed a breach of contract 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-diseriminatory 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 Bli-stein 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
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 maynot 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....
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.,
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 “totality of the circumstances” test,
see O’Shea,
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 1509, 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 rendered that contract voidable.
Wamsley,
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.,
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.,
B.
On the merits of whether Blistein relinquished through ratification any ADEA claim he might have had, Blistein argues that “there was 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 be
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.... ... [/y 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.
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,
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 qualifications
7
out
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.,
Several of our sister circuits have suggested that early retirement to prevent the withdrawal or reduction of benefits might, under some circumstances, give rise to a constructive discharge.
See, e.g., Smith v. World Ins. Co.,
“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]ntolera-bility ... is assessed by the objective standard of whether a ‘reasonable person’ in the employee’s position would have felt
compelled
to resign,”
Bristow,
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,
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 eligibility for benefits until the elimination of his position, or a profitable early retirement package that included not only the post-retirement 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.”
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 post-retirement 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,
Insofar as his alleged constructive discharge is concerned, Blistein is no differently situated than was the plaintiff in
Ackerman v. Diamond Shamrock Corp.,
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,
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.,
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,
Blistein also urges us to consider certain “other evidence” that the employer did not treat age neutrally.
Herold,
First, Blistein advances the fact that “substantially younger employees in other nonessential 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 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 ÁDEA 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 evi
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 ease of age discrimination, an argument which we have repeatedly rejected,
see, e.g., Clay Printing,
Finally, Blistein argues that because “the timing of [his] termination was allegedly orchestrated because of the College’s upcoming 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 Bli-stein’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 faded to meet the fourth element of his prima facie case, the district court properly granted summary judgment for the College.
sji Hs sfc
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 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
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.
Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
Notes
. Blistein discussed the reason for his departure with Dean Brann in Séptember 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.
. 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,
. 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.
.
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.,
. 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.
. Blistein's attorney acknowledges that he discussed the fact “that Mr. Blistein had never signed a release which would comport with the 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.
.Our opinion in
Clay Printing
omitted the clause "comparable qualifications” in articulating the fourth element of the prima facie case.
. 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 non-discriminatory rationale for its actions was merely pretext for discrimination.
. 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,
. President Nelson explained the nature of the benefits as follows:
It was always the understanding that the practice [on post-retirement 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 post-retirement. 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.).
. 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.,
. 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 nonessential. It is through precisely such efforts that academic employers operate within budget constraints while at the same time maximizing educational opportunities for their students.
.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