order to maintain comity within the same salary range. D'Aquino's deposition also contains a reference to the company's salary policy. (D'Aquino Deposition at 103.) As indicated by Citicorp's records, D'Aquino's salary exceeds his co-worker's salary by a significant amount. His lower salary increases, then, appear consistent with the company's salary policy. The court need not consider every conceivable inference which can be drawn, only those that are reasonable. Matthews, 769 F.2d at 1218. The court can reasonably infer that D'Aquino's increase was pursuant to a legitimate company salary policy. D'Aquino, therefore, fails to show that age discrimination affected his salary increases.
D'Aquino claims denial of promotions as additional evidence of age discrimination. He targets four positions as ones where he was denied promotions. It is uncontested that D'Aquino did not apply for three of the four jobs. In order "to establish a claim of age discrimination as a matter of law [based on denial of promotion for these positions], [he] would have had to apply for the positions." Glismann v. AT & T Technologies, Inc., 827 F.2d 262, 268 (8th Cir. 1987). To circumvent this requirement, D'Aquino argues that he was constructively denied a promotion. He contends that he did not apply for a position as financial manager for membership acquisition because he believed that his evaluations prevented him from applying. While ingenious, D'Aquino does not state a cause of action. Even if the court were to fashion a cause of action by looking to the area of constructive discharge, D'Aquino would fall short. Under the constructive discharge standard as applied to a theory of constructive denial of promotion, the court would need to find that a reasonable person in D'Aquino's position would have felt that he was prevented from applying for the promotion position. See Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied, 475 U.S. 1082, 89 L. Ed. 2d 718, 106 S. Ct. 1461 (1986). From the facts disclosed in D'Aquino's deposition, it is difficult to see how a reasonable person would have felt unable to apply for the position. Although D'Aquino had just received a marginal rating, the bulk of his prior reviews had been satisfactory. In addition, D'Aquino's manager sent D'Aquino a memo which made it clear that D'Aquino was eligible to apply for the position. (D'Aquino deposition at 79.) Further, human resources sent D'Aquino a memo describing the method by which he could apply for the job. (Id. at 77.) Seemingly, the company directed its efforts towards demonstrating to D'Aquino that he was eligible, rather than ineligible, for the post.
D'Aquino did apply for the position as vice president of product development. For D'Aquino to prove that he was denied a promotion to this position based on age, he must show that he was a member of a protected class; he applied for a position for which he was qualified; and he was denied a promotion which was given to a younger man. Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 674 (9th Cir. 1988). Here, D'Aquino's claim fails because he cannot show that he was qualified for the product development position. The qualifications for the position included a bachelor of arts in business, preferably an advanced degree, seven or more years in the marketing area, strategic planning and new product development experience. D'Aquino does not have a masters degree. At most, he has six years of limited marketing experience from positions he held earlier in his career. And, D'Aquino was not in the appropriate employment level to make the move to a vice president position. D'Aquino does not contest that company policy only allows employees to be considered for promotions one level above their current position. (Id. at 7-8.) D'Aquino is in an S-level position; the vice president position was a U-level spot. Based on these facts, the court concludes that D'Aquino was not denied the position based on his age.
V. Separation Agreement
The last in D'Aquino's litany of age discrimination claims relates to a separation agreement Citicorp offered him. The offer of a separation or early retirement agreement is not evidence of age discrimination. Such an offer only becomes discrimination when the employee must choose between early retirement or an employment situation that is in violation of the ADEA. Henn v. Nat'l Geographic Society, 819 F.2d 824, 829 (7th Cir.), cert. denied, 484 U.S. 964, 98 L. Ed. 2d 394, 108 S. Ct. 454 (1987); Mitchell v. Mobil Oil Corp., 896 F.2d 463, 467 (10th Cir.), cert. denied, 498 U.S. 898, 112 L. Ed. 2d 210, 111 S. Ct. 252 (1990).
In D'Aquino's case, the separation agreement was proffered as one of three options to resolve his situation within the company. D'Aquino himself considered the agreement a compromise to seek "a solution, to make up for whatever wrongs were done." (D'Aquino Deposition at 94.) D'Aquino contemplated the option, but discarded it when agreement could not be reached on a compensation amount. (Id. at 94-97). Once having rejected the agreement, D'Aquino does not point to any difference in treatment within the company. Certainly he does not indicate any difference in treatment which reached the level of a violation of the ADEA. This ground, therefore, is also inadequate as a basis for discrimination.
"Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment whenever 'there is no genuine issue as to any material fact and. . . the moving party is entitled to judgment as a matter of law.' No genuine issue of material fact exists 'unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.' Anderson v. Liberty Lobby, 477 U.S. 242, 249 [91 L. Ed. 2d 202, 106 S. Ct. 2505] (1986)" Harbin v. Burlington Northern Railroad Co., 921 F.2d 129, 130, 1990 U.S. App. LEXIS 22290, (7th Cir. 1990). As clearly shown by the court's review of the issues and the law applicable to this case, plaintiff D'Aquino has not demonstrated that sufficient evidence exists upon which a jury could return a verdict in his favor. Accordingly, the court grants Citicorp's motion for summary judgment.
IT IS SO ORDERED.