Greenberg v. Union Camp Corp.

• Decision Date: 09 November 1994
• Docket Number: No. 94-1312,94-1312
• Citation: 48 F.3d 22
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 120, 129 Lab.Cas. P 57,842 Harvey R. GREENBERG, Plaintiff, Appellant, v. UNION CAMP CORPORATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 22

48 F.3d 22

67 Fair Empl.Prac.Cas. (BNA) 120, 129 Lab.Cas. P 57,842

Harvey R. GREENBERG, Plaintiff, Appellant, v. UNION CAMP CORPORATION, Defendant, Appellee.

No. 94-1312.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 1994.

Decided Feb. 17, 1995.

Douglas G. Moxham, with whom Geoffrey R. Bok and Lane & Altman, Boston, MA, were on brief, for appellant.

John T. Murray, with whom Jeffrey K. Ross, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, John A. Nadas, Kevin P. Light, Karen L. Cartotto and Choate, Hall & Stewart, Boston, MA, were on brief, for appellee.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Plaintiff-appellant Harvey Greenberg appeals from a directed verdict granted in favor of defendant-appellee Union Camp on Greenberg's claims of wrongful termination due to age and retaliatory discrimination. Because Greenberg failed to adduce sufficient evidence to support a finding of constructive discharge or retaliatory motive, we affirm.

I. Background

In October of 1971, Harvey Greenberg, at age thirty-five, began working as a sales representative for Union Camp. ¹ Union Camp hired Greenberg primarily to cover the Maine sales territory for its Dedham, Massachusetts, plant. Union Camp manufactures (and Greenberg sold) corrugated cardboard boxes for industrial and commercial use. Throughout his career at Union Camp, Greenberg resided in Swampscott, Massachusetts.

When Union Camp hired Greenberg, it had virtually no existing customer base in the State of Maine. Greenberg initially spent one week a month prospecting for new accounts in Maine and the rest of the month selling to existing Massachusetts customers. Greenberg, however, successfully built up Union Camp's client base in Maine and in short order concentrated his sales efforts almost exclusively in Maine. Indeed, Greenberg was primarily responsible for securing the Maine client base which was a prerequisite for Union Camp to open a corrugated container plant in Auburn, Maine. By 1977, Union Camp's client base in Maine had grown such that Greenberg's sales territory was narrowed to approximately the southern half of the State of Maine. ²

Greenberg increased his sales every year, from $190,000 in 1972 to over $5,400,000 in 1989. Greenberg's profit contribution (roughly a measure of how much money Union Camp earned on the sales) consistently compared very favorably with that of other Union Camp sales representatives. Moreover, at least by some measures, Greenberg successfully sold not only to established accounts, but also to new customers. ³ Greenberg received annual pay increases with his compensation rising from about $12,500 in 1972 to almost $65,000 in 1989. In July of 1990, at his annual performance review, Greenberg, who like all Union Camp sales representatives worked on a salary rather than a commission basis, received the largest merit increase of his career.

Throughout most of his nineteen years at Union Camp, Greenberg called on his Maine customers only on Tuesdays, Wednesdays and Thursdays. He attributed this work schedule, at least in part, to his basic sales philosophy that prospective customers were generally too busy for and unreceptive to sales pitches on Mondays and Fridays. During a typical week, Greenberg would leave his home in Massachusetts at 5:30 a.m. on Tuesdays, meet his first customer in Maine at 7:00 a.m. and continue to make sales calls until around 3:00 p.m., when he would check into a motel where he would spend Tuesday and Wednesday nights. Often he would entertain clients on the company expense account during the evenings. Wednesdays, he typically left his hotel at 8:00 a.m. and would call on customers until the middle of the afternoon. On Thursdays starting sometime after 8:00 a.m., he would visit customers while working his way back to Massachusetts, generally arriving home sometime near the middle of the afternoon.

Early in his career, Greenberg reported to the Dedham, Massachusetts, plant on Mondays to speak to supervisors, turn in expense reports and meet with box designers about customer orders. After Greenberg began reporting to the Maine plant in 1983, he still periodically went to the Dedham plant to work with designers until the facility closed around 1986. From 1986 until he left the company, Greenberg generally worked out of his home on Mondays and Fridays, completing paperwork ⁴ and making telephone calls to the plant and to customers. Greenberg normally finished this work before noon, usually leaving the rest of the day for personal matters. Greenberg periodically did visit a New Hampshire customer on Mondays.

In 1987, Union Camp assigned Gerald Redman to the Auburn, Maine, plant as plant manager. In the summer of 1987 at Greenberg's annual performance review, Redman told Greenberg that, "[y]our reputation goes all the way to Wayne [ (Union Camp's headquarters) ], you don't work Monday and Friday. If it ever gets to be a problem, I will be the first to tell you about it." Bob Ritter, the Maine plant sales manager, testified that, at this meeting and at Greenberg's 1988 performance review, Greenberg stated that he intended to retire at age fifty-five.

In November 1989, Redman and Ritter required Greenberg and the other sales representatives to make presentations regarding their top five new-account prospects. Redman was extremely dissatisfied with Greenberg's performance at his individual meeting, and Greenberg described the meeting as "two hours of insults and threats." At one point during the meeting, Greenberg stated, "I don't have to listen to this garbage anymore," and threatened to walk out. At another, Greenberg commented to Redman that there seemed to be "[a] sword of [D]amocles hanging over my head in my best sales year." To which Redman responded, "You'd better believe it." Ritter testified that at this meeting he told Greenberg that his three-day schedule was not satisfactory. Though Greenberg maintained that he was not ordered at this point to make sales calls on Mondays and Fridays, he admitted that his work schedule may have been discussed. Following the meeting, Greenberg avoided speaking with Redman and Ritter except as business required. ⁵

Greenberg asked Ritter to visit some customers with him in February of 1990. During the trip, the two discussed the previous November meeting. Greenberg testified that they also discussed Greenberg's own belief that Union Camp's sales force was too old. ⁶ He also admitted that they may have discussed his work schedule and sales philosophy, but he did not specifically recall.

At a meeting in May 1990, Ritter asked Greenberg, who would turn fifty-four the following July, whether he had plans to retire early at age fifty-five. Though Greenberg testified that he had never told anyone at Union Camp that he intended to retire early, he admitted that a story he often told about his father might have suggested that he wished to do so. ⁷ During the meeting, Greenberg told Ritter that there was no way he could afford to retire early. Directly following the meeting, Ritter informed Redman that Greenberg did not intend to retire early. Redman testified that this fact increased the need to do something about Greenberg's work schedule.

In July 1990, Ritter gave Greenberg his annual review, at which he told Greenberg about his raise, which was the largest of Greenberg's career, and about areas of his job performance that needed improvement. Following the meeting, Ritter sent Greenberg a letter purporting to summarize the main points of the review. Ritter noted in the letter that he had informed Greenberg that he must show improvement "in the immediate future" in areas of "base accounts, new account development, communication with management, work schedules, expenses and communication." More specifically, Ritter wrote:

New account penetration in recent years has been unsatisfactory. Regardless of base account level, new account focus, planning and development must improve. Work habits and methods must be reviewed with action taken to better utilize open available weekly time to achieve job responsibilities. Not communicating with management because of the difference of opinion is unacceptable, and actions such as these cannot occur again.

Greenberg testified that he could not recall Ritter counselling him about any significant performance problems in past reviews. ⁸

Greenberg responded with a four-page missive of his own, dispatched to Ritter and Redman, in which he contested the substance of Ritter's complaints. Though Greenberg testified at trial that the fact that he only called on customers on Tuesdays, Wednesdays and Thursdays was not discussed at his review, in his letter he specifically responded: "[']Work habits and methods [ (referring to Ritter's letter) ]....['] We have talked about this before and my position has never changed.... It's been my experience that successful salesmen have different methods and if they are successful they should be rewarded [and] not made to walk to the same beat of some drummer." (Second ellipsis added).

Redman replied to Greenberg with a short letter stating:

We received your letter of August 18, 1990, and we would prefer not to continue a letter writing exchange regarding your Sales Philosophy.

Bob Ritter's memo of August 8, 1990 was written to document the fact that your performance has not been up to expected standards in the areas of: expenses, expense reporting, communications, work schedules and new account penetration. The memo also intended to emphasize the seriousness of continued resistance to change and critical opposition to suggestions for improvement.

After receiving this letter, Greenberg consulted a lawyer, who, on September 13, 1990, wrote to Redman's superior suggesting that Greenberg was being subjected to age discrimination. On September 19, 1990, shortly after Union Camp received this letter, Redman...