Walton v. Nalco Chemical Co

• Decision Date: 06 June 2001
• Docket Number: No. 00-2196,N,No. 00-1988,00-1988,00-2196
• Citation: 272 F.3d 13
• Parties: (1st Cir. 2001) GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant. GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant. GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant. o. 00-2102, Heard
• Court: U.S. Court of Appeals — First Circuit

Page 13

272 F.3d 13 (1st Cir. 2001)

GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant.

GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant.

GARY WALTON, Plaintiff, Appellant/Cross-Appellee, v. NALCO CHEMICAL COMPANY, Defendant, Appellee/Cross-Appellant.

No. 00-1988, No. 00-2102, No. 00-2196

United States Court of Appeals For the First Circuit

Heard June 6, 2001

Decided November 28, 2001

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Daniel G. Lilley, with whom Daniel G. Lilley Law Offices, P.A. was on brief for plaintiff, appellant.

James B. Haddow, with whom Petruccelli & Martin, LLP was on brief for defendant, appellee.

Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

CYR, Senior Circuit Judge.

Plaintiff Gary Walton challenges various rulings which led the district court to dismiss his state-law claim for intentional infliction of emotional distress against his former employer, Nalco Chemical Company (Nalco), and to disallow his motion to amend the complaint to include a defamation claim under Maine law.

In its cross-appeal, Nalco challenges various evidentiary rulings, as well as the denial of its motion to dismiss Walton's pendant state-law age-discrimination claim under the Maine Human Rights Act ("MHRA"). We affirm the district court judgment.

I BACKGROUND¹

In 1977, Walton joined the staff at Nutmeg Technologies, Inc. ("Nutmeg"), selling water treatment chemicals and supplies to industrial and institutional customers in Maine. Between 1977 and 1994, his annual sales increased from $223,000 to more than $1,000,000. By the time Diversey Water Technologies, a Nalco subsidiary, announced its intention to acquire Nutmeg in October 1996, Walton then sixty years of age, was earning $61,000 a year as Nutmeg's highest paid Maine salesman.²

Prior to the time Nutmeg was actually acquired by Nalco, Walton had explained to Nalco Vice-Presidents Peter Hallson and Kenneth Yankowski that he wanted to retain his sales accounts and intended to continue working until at least age sixty-five. After Hallson and Yankowski acceded to his demands, Walton entered into an agreement not to compete with Nalco within his current sales territory for a period of eighteen months following any termination of his employment with Nalco. Whereupon Nalco agreed to disburse $5,500 to Walton as a retention bonus, provided that Walton remained employed by Nalco as of September 30, 1997.

In June 1997, however, Walton learned that Nalco had reassigned some of his sales accounts, including the third largest, to Troy Malbon, a thirty-one-year-old salesman previously supervised by Walton. On August 20, 1997, Walton met with Yankowski and Joseph Carney, Walton's direct supervisor, at their request. Yankowski inquired into Walton's financial condition, including the value of his residence and personal property, then announced that all of Walton's remaining sales accounts would be transferred to Malbon, effective January 1998. Finally, Yankowski related two anecdotes about former Nalco employees who had been demoted or discharged at age sixty-two, explaining that Nalco had forced one of them to accept early retirement.

At the same time, Yankowski advised Walton that Nalco was not prepared to offer him any early-retirement incentive, suggesting instead that Walton accept part-time employment at $20,000 per year -- less than one-third his salary at the time. Walton regarded Yankowski's remarks as warnings designed to compel him to accept early retirement. In due course, Walton retained counsel, who informed Nalco on October 3, 1997, that it had engaged in age discrimination. On October 8, 1997, Yankowski and Carney instructed Walton to bring additional information regarding his financial condition, so that his minimum financial needs could be calculated by Nalco with a possible view to tendering him a buy-out offer.³

At Yankowski's direction, during another meeting in November 1997, Walton was required to submit to an employee evaluation pursuant to a so-called Personnel Regeneration Form; Walton tested deficient in thirteen of its fifteen categories. Walton declined to sign the written evaluation and rejected the proffered employment contract,⁴ after informing Nalco Vice-President Richard Murphy, in writing, that he would not sign the new contract unless Nalco first met with his attorney to discuss the age-discrimination claims. During this period, Walton experienced emotional distress and even fantasized about suicide. In February 1998, Walton was discharged for refusing to sign the new employment contract tendered by Nalco.

The day after Walton's discharge, a Nalco employee came to the Walton home to reclaim a piece of testing equipment and the company car. After rebuffing Walton's request that he be allowed to retain the testing equipment for its "sentimental value," the Nalco employee repossessed both the testing equipment and the company car in the presence of Walton's family and neighbors. Less than sixty days passed before Walton was hired by a Nalco competitor and assigned to one of his former Maine sales districts.

Walton instituted suit in the United States District Court for the District of Maine, claiming violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the fair employment provisions of the MHRA, Me. Rev. Stat. Ann. tit. 5, § 4571 et seq., as well as intentional infliction of emotional distress. Nalco counterclaimed that Walton had breached the noncompetition agreement by accepting employment with a Nalco competitor. In due course, the district court denied Walton's motion to amend the complaint to include a defamation claim, granted partial summary judgment to Nalco on the issue of Walton's liability under the counterclaim, and reserved for trial the issue of damages under the counterclaim.

At trial, Nalco's counterclaim was dismissed after all its evidence on damages had been excluded. The district court entered judgment as a matter of law for Nalco on the Walton state-law claim for intentional infliction of emotional distress. At the conclusion of the trial, the jury returned verdicts on the ADEA and MHRA claims, awarding Walton $57,872 in back pay, $250,000 for pain and suffering, and $1,250,000 in punitive damages. The district court reduced the total jury award to $357,872, consistent with the limitations prescribed in the ADEA and the MHRA.

II DISCUSSION

A. The Walton Appeal

1. The Intentional Infliction of Emotional Distress Claim

Walton first contends that there was enough evidence to establish that Nalco intended to inflict emotional distress by discharging him. Judgments entered as a matter of law are reviewed de novo, and will be affirmed "only if, after scrutinizing the proof and inferences derivable therefrom in the light most hospitable to [Walton], we determine that a reasonable fact finder could have reached but one conclusion: that [Nalco] w[as] entitled to judgment." Fleet Nat'l Bank v. Anchor Media Television, Inc., 45 F.3d 546, 552 (1st Cir. 1995).⁵

Walton had the burden to prove that

(1) [Nalco] intentionally or recklessly inflicted severe emotional distress or was certain that such distress would result from [its] conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; (3) [Nalco's] actions . . . caused [his] emotional distress; and (4) the emotional distress . . . was so severe that no reasonable [person] could be expected to endure it.

Vogt v. Churchill, 679 A.2d 522, 524 (Me. 1996) (internal citations and quotation marks omitted). Moreover, it was necessary for the district court, in its "gatekeeper" role, to determine, in the first instance, "'whether [Nalco's] conduct may reasonably be regarded as so extreme and outrageous [as] to permit recovery.'" Champagne v. Mid-Maine Med. Ctr., 711 A.2d 842, 847 (Me. 1998) (citation omitted).

Walton insists that the evidence demonstrated the requisite "extreme and outrageous" conduct, in that Nalco (i) abused its position of authority, qua employer; (ii) threatened his livelihood and professional reputation by attempting to pressure him to accept a buy-out package; and (iii) subjected him to undue "humiliation" by, inter alia, transferring his sales accounts to a less experienced employee, promulgating a false and demeaning job-performance review, and repossessing company property from him in the presence of his family and neighbors.

The district court correctly ruled that Walton's claim⁶ should be dismissed because the evidence failed, as a matter of Maine law,⁷ to demonstrate an intentional infliction of emotional distress.

2. The Motion to Amend

Walton next contends that the district court erred in denying, as untimely, his motions to amend his complaint -- made immediately before and after trial -- to include a defamation claim under Maine law. See Fed. R. Civ. P. 15(a), (b). We review only for abuse of discretion. See Kemper Ins. Cos. v. Fed. Express Corp., 252 F.3d 509, 512 (1st Cir. 2001); Quaker State Oil Ref. Corp. v. Garrity Oil Co., Inc., 884 F.2d 1510, 1517 (1st Cir. 1989) (trial court considering proposed amendment must "examine the totality of the circumstances and exercise sound discretion in light of the pertinent balance of equitable considerations"). Although "leave [to amend] shall be freely given when justice so requires[,]" Fed. R. Civ. P. 15(a), "parties seeking the benefit of . . . [Rule 15(a)'s] liberality [must] exercise due diligence; unseemly delay, in combination with other factors, may warrant denial of a suggested amendment." Quaker State, 884 F.2d at...