Among other things, the FLSA prohibits employers from "discharg[ing] or in any other manner discriminat[ing] against any employee because such employee has filed any complaint . . . under or related to [the FLSA]." 29 U.S.C. § 215(a)(3). This "section protects conduct based on a good faith, although unproven, belief that the employer's conduct is illegal," and "applies to the unofficial assertion of rights through complaints at work." Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984).

We analyze FLSA-retaliation claims under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pacheco v. Whiting Farms, Inc., 365 F.3d 1199, 1206 (10th Cir. 2004). Under that framework, the employee must first establish a prima facie case of retaliation. Id. If the employee succeeds, the employer must offer a legitimate, non-retaliatory reason for the adverse employment action. Id. Then, "the burden shifts back to the employee to show [that] genuine issues of material fact exist regarding whether the employer's proffered reason is unworthy of credence." Id. at 1207. We conclude that Saville's retaliation case fails at the framework's initial stage.

An employee cannot establish a prima facie case of retaliation without an adverse employment action. See id. at 1206. Saville's retirement from IBM would qualify as an adverse action only if IBM deliberately made or allowed Saville's working conditions to become so intolerable that he had no other choice but to retire. See MacKenzie v. City & County of Denver, 414 F.3d 1266, 1281 (10th Cir. 2005). In other words, Saville's retirement would have to amount to a constructive discharge, and would depend upon whether a reasonable person would view the conditions at IBM as intolerable, not upon Saville's subjective view of those conditions. Id.

Saville argues that a triable issue of fact exists as to whether a reasonable person would have chosen retirement over the performance improvement plan, because (1) he had received a negative interim evaluation; (2) his complaints against Fullmer were not seriously considered, and instead, he was accused of being the problem; (3) Myers told him, during their September 1998 meeting, "I want you out" of IBM, Aplt. App. at 118 (quotation omitted);⁽¹⁾ and (4) Myers said the duration of the improvement plan would be ninety days, but Fullmer shortened it to thirty days, "did not put anything on paper," and said one complaint would result in termination, Aplt. Br. at 39.⁽²⁾ We agree with the district court that no reasonable jury could find these conditions so intolerable as to render Saville's retirement involuntary. The inquiry is not whether the conditions at IBM were "difficult or unpleasant," but whether, at the time of Saville's retirement, IBM did not allow him "the opportunity to make a free choice regarding his employment relationship." Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004) (quotation omitted). Other courts have held "that criticism in performance reviews and institution of performance improvement plans, alone, do not constitute objectively intolerable conditions." Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002); accord Givens v. Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005). We agree. Cf. Lybrook v. Members of Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1339 (10th Cir. 2000) (placing employee on a professional development plan and requiring employee to meet weekly with her superior was not an adverse employment action in her First Amendment retaliation case). Furthermore, we have previously indicated that an employer's offer of an alternative to quitting is not consistent with constructive discharge. See, e.g., Exum, 389 F.3d at 1136. Saville could have remained at IBM and undertaken the performance improvement plan. Indeed, Saville testified at deposition that he had placed at least six subordinates on ninety-day improvement plans and they all succeeded, although some "fell off" afterward. Aplt. App. at 127.⁽³⁾ Finally, Saville was given thirty days in which to consider remaining with IBM and was verbally notified of the criteria under which he would be judged if he elected to remain. The totality of the circumstances indicates, as a matter of law, that Saville's retirement was voluntary.

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

^*. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^1. Saville ignores the full extent of Myers' remarks. At his deposition, Saville testified that Myers said, "'I want you to leave IBM. Well, you can accept the [performance improvement plan].'" Aplt. App. at 118. In any event, an employer's subjective intentions regarding the employee have no bearing on whether there was a constructive discharge. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).

^2. Saville also states that Fullmer and Myers "transformed [a] customer's failure [to perform its obligations] into a customer complaint against Mr. Saville." Aplt. Br. at 38. But Saville fails to cite any part of the record showing such a transformation. Indeed, the customer submitted an affidavit testifying that it had asked IBM to remove Saville from a project because he "was obnoxious and acted inappropriately" and "was not treating us properly and with respect." Aplt. App. at 205.

^3. We are not persuaded by Saville's summary contention that a thirty-day plan is somehow more onerous than a ninety-day plan. Nor do we attribute any weight to Saville's assertion that, if he had chosen the improvement plan, he would have remained subject to termination "a year or more after the successful completion of the plan" if he violated any of the plan's criteria, Aplt. Br. at 35. Mere speculation is insufficient to withstand summary judgment. Setliff v. Mem'l Hosp. of Sheridan County, 850 F.2d 1384, 1393 (10th Cir. 1988); see also Agnew, 286 F.3d at 310 ("An employee who quits a job in apprehension that conditions may deteriorate later is not constructively discharged. Instead, the employee is obliged not to assume the worst, and not to jump to conclusions too fast." (quotation omitted)).

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