Hinchey v. NYNEX Corp.

Decision Date06 March 1998
Docket NumberNo. 97-2253,97-2253
Citation144 F.3d 134
PartiesJohn A. HINCHEY, Plaintiff, Appellant, v. NYNEX CORPORATION, and Telesector Resources Group, Inc., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Kevin M. Akre, for appellant.

Barry A. Guryan, with whom, Michael J. Tuteur, Karen K. Burns and Epstein, Becker & Green, P.C., and Amy B. Seifer, Counsel, Bell Atlantic Corporation, were on brief, for appellees.

Before BOWNES and CYR, Senior Circuit Judges, and STEARNS *, District Judge.

BOWNES, Senior Circuit Judge.

Plaintiff John A. Hinchey brought this diversity action against his former employer, NYNEX Corporation ("NYNEX") and Telesector Resources Group, Inc. ("TRG") 1 for damages arising from his alleged wrongful termination. Specifically, plaintiff's claims include breach of contract, promissory estoppel, intentional misrepresentation, fraud and deceit, negligent misrepresentation, intentional and negligent infliction of emotional distress, and wrongful discharge in violation of public policy. It is Massachusetts substantive law that controls. The district court judge granted defendants' motion for summary judgment, based primarily on his determination that plaintiff had not provided sufficient evidence on any of his seventeen claims to warrant a jury trial. We affirm.

I. Facts

Viewed in the light most favorable to the nonmoving party (Hinchey), the following facts are treated as undisputed for purposes of summary judgment. See Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997).

In October 1965, plaintiff Hinchey began working for New England Telephone as a candidate for the Initial Management Development Program ("IMDP"). 2 After working in various technical management positions and receiving positive evaluations, Hinchey was promoted in 1982 and became responsible for Corporate Communications. From August 1991 until April 1993, he was an acting Assistant Vice President. At the time of his termination, Hinchey held the position of Director of Technical Support in the Information Services Organization within TRG.

On April 15, 1983, the Company distributed its Code of Business Conduct ("1983 Code" or "the Code") to all employees. The purpose of the Code was to acquaint employees with the Company's "core values" and ethical standards. In essence, these values and standards amounted to an espousal of responsible and legal behavior on the part of employees and the Company. The 1983 Code also included a non-retaliation provision which assured an employee protection against reprisal for reporting violations of the Code. All employees were required to acknowledge their assent to the provisions of the Code with a signature. Because Hinchey believed that the Code, once signed, would be a binding document, he added the following statement before signing it:

I love the Bell System and New England Tel[ ] Co[ ], but I am not "satisfied" with my progress to date and cannot, in conscience[,] fully support all existing interpretations of corporate policy. Therefore I cannot exclude the possibility of initiating external review of these concerns and situations. However, my objective continues to be to work toward the betterment of the Company as well as myself.

Ed McCauley, Hinchey's supervisor at the time, was aware of Hinchey's intention to add the statement. He was uncertain, however, how it would be interpreted by upper-level management and cautioned Hinchey to carefully consider his decision to add it. In the end, Hinchey added the statement and considered it to be a negotiated-for exception to portions of the Code which prohibit public disclosure of company policies or practices. Despite the added statement, Hinchey thought the non-retaliation provision still applied to him. In fact, he believed that the added statement solidified his perception that the Code was a binding contract between the Company and himself.

NYNEX revised its Code of Business Conduct in 1992 and 1993, adding, inter alia, a statement expressly disclaiming any contractual obligations. Although Hinchey received copies of the 1992 and 1993 codes, he did not question the Company's right to alter the substance of the 1983 Code. Rather, Hinchey continued to assume that his added statement to the 1983 Code was in effect and provided him a contractual exception to the corporate policy of confining complaints within the Company's framework.

In January 1992, NYNEX implemented a Force Management Plan ("FMP") to regulate force reduction procedures for management personnel. Once a force surplus is perceived, the FMP outlines a detailed procedure by which to identify employees in the surplus job categories and assess them against defined criteria. A Supervisor's Guide was issued to all management to assist in the downsizing process. The FMP contained an explicit disclaimer:

The FMP Guidelines are not inflexible, do not constitute a contract of employment, and should not be interpreted as creating a contract of employment, either expressed or implied. The employment relationship between the Corporation and its management employees is by mutual consent (employment-at-will), and may be terminated by either the Corporation or the employee at any time for any reason.... These guidelines may be changed unilaterally by the Corporation at any time and for any reason.... Nothing in these guidelines should be interpreted as a limitation, either expressed or implied, on the Corporation's right to discharge or otherwise discipline its employees.

NYNEX Force Management Plan Resource Guide 3. Despite the disclaimer, Hinchey believed that the FMP had been followed in all force reductions that he knew of and that it therefore was a "mandatory and binding procedure" which would be followed in the future.

On May 5, 1992, Hinchey began discussions with his direct supervisor, Vice President Joseph Castellano, regarding "business and procurement irregularities" allegedly perpetrated by NYNEX. Hinchey complained that he had observed a "pattern of negligence and closed-mindedness" within NYNEX for twenty-five years that he thought clearly violated the Code of Business Conduct. Hinchey asserts that Castellano made no attempt to address his concerns or end the irregularities.

In early 1993, Hinchey received his performance appraisal for 1992. Despite mostly positive feedback, he received what he considered to be a negative evaluation in the "Communication" category. Hinchey knew that such an evaluation might lead to termination under the FMP, so he approached Castellano on February 24, 1993, to talk about a voluntary separation plan for himself. Hinchey's proposed plan included, inter alia, a stipulation that he would receive two years "net credited service" in return for his voluntary separation. "Net credited service" refers to the number of years an employee has worked at NYNEX. The Company's retirement plan specified that an employee with less than thirty years of service to the Company (i.e., thirty years of net credited service) at the time of retirement would be subjected to a pension reduction. Because he had been employed at NYNEX for only twenty-eight years, his separation proposal included a stipulation that he would be given two extra years of net credited service in order to ensure a full pension. Castellano told Hinchey that he would consider his proposal. Hinchey heard nothing further about his plan for several months.

On July 19, 1993, Hinchey called Ivan Seidenberg, Vice-Chairman of NYNEX, to schedule an appointment during which Hinchey could discuss his allegations of irregularities. One hour later, Hinchey received a phone call from Castellano, during which Castellano stated, "Of course you can talk with Ivan [Seidenberg] if you wish but I have worked out just what you want." Hinchey responded, "Joe [Castellano], that's not what I want, that's what I said I would accept back in February." He also said, "Now you have demoted me and have ruined my career and now you've ruined my reputation and unless I get a permanent promotion I am going to talk it over with Ivan. I don't understand why you couldn't have just talked with me and have been straight with me." Pl.'s Aff. dated July 10, 1997, at 10.

On August 5, 1993, Hinchey met with Castellano and was terminated. Hinchey's termination papers indicated that he was discharged under the FMP. At that meeting, Hinchey was told by Castellano that he would receive the net credited service he had requested, even if it had to be paid out of departmental funds. Castellano instructed Hinchey to see William Coffey, Director of NYNEX's Human Resources Department, to "work it out." When Hinchey spoke to Coffey, however, Coffey stated that a grant of net credited service could not be provided within the framework of an FMP termination, but that he would work on it with Castellano. On one or two other occasions, Castellano reasserted his promise to Hinchey, telling him to submit a voucher for the net credited service. When Hinchey submitted a voucher to Castellano, however, Castellano sent it back to him with a note explaining that he needed to see Coffey regarding this issue. Hinchey never received the two years net credited service that Castellano promised he would receive.

Subsequent to his termination, Hinchey canceled his scheduled meeting with Seidenberg. He persisted, however, in trying to set up a conference with Seidenberg. In December, Seidenberg finally met with Hinchey, but Hinchey asserts that the one and a half hour meeting did not provide sufficient time to cover all of his concerns. As a result, Hinchey sent Seidenberg a series of letters with attachments detailing the company policies and practices with which he was concerned. During this time, Hinchey was also in contact with Bill Pucci, NYNEX's Managing Director--Office of Business Conduct. Pucci...

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