Sutton v. Atlantic Richfield Co.

• Decision Date: 26 May 1981
• Docket Number: No. 79-3345,79-3345
• Citation: 646 F.2d 407
• Parties: 25 Fair Empl.Prac.Cas. 1619, 26 Empl. Prac. Dec. P 31,897 Lawrence W. SUTTON, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 407

646 F.2d 407

25 Fair Empl.Prac.Cas. 1619,

26 Empl. Prac. Dec. P 31,897

Lawrence W. SUTTON, Plaintiff-Appellant, v. ATLANTIC RICHFIELD COMPANY, Defendant-Appellee.

No. 79-3345.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1981.

Decided May 26, 1981.

Jeffrey S. Pop, Pop & Hahn, Beverly Hills, Cal., for plaintiff-appellant.

Paul Grossman, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and FERGUSON, Circuit Judges, and SOLOMON, ^* District Judge.

ELY, Circuit Judge:

Sutton appeals a Fed.R.Civ.P. 41(b) dismissal of his suit alleging a violation of the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 621 et seq. ¹ He contends that the circumstances under which he accepted an early retirement amounted to a constructive discharge and that the Atlantic Richfield Company (ARCO) was improperly motivated by Sutton's age in orchestrating his allegedly coerced retirement. In a bench trial, the District Court dismissed the suit following the close of appellant's case on several alternative grounds: (1) Sutton did not establish a prima facie case of age discrimination; (2) even if Sutton initially established a prima facie case, ARCO met its burden of producing evidence of legitimate, nondiscriminatory reasons for its actions, which reasons Sutton failed to demonstrate were untrue; and (3) even if age played some factor in management's actions, ARCO established other factors showing that it had good cause constructively to discharge Sutton, and thus could avail itself of the affirmative defense of 29 U.S.C. § 623(f)(3). ²

On appeal Sutton argues that the trial court's adverse factual findings of no age discrimination were clearly erroneous under Fed.R.Civ.P. 52(a), that the court misapplied the law with respect to finding an ADEA violation, and that it was prejudicial error to deny Sutton's demand for a jury trial. ³ None of these contentions has merit; hence, we affirm.

FACTS

In March of 1977 Sutton, a 30-year employee and a high-level executive in charge of purchasing, was pressured into accepting an early special retirement. He was 59 years of age at the time of his retirement effective April 1, 1977, and was replaced by a 41-year-old man. The circumstances which prompted ARCO's management to encourage Sutton to retire are the subject of considerable controversy and form the basis of Sutton's age discrimination allegations.

It is not necessary fully to recite the factual circumstances surrounding Sutton's retirement. He bases his claim of unlawful age discrimination upon his direct testimony regarding allegedly discriminatory remarks made by Bressler, a Vice President of Finance & Planning, in face-to-face meetings with Sutton. Sutton contends that Bressler wanted to replace certain older executives who occupied management positions that Bressler believed were developmental i. e., that he and others orchestrated Sutton's removal so he, Sutton, could be replaced with a young "high-potential" executive who could be groomed as a future officer while serving in the Manager of Purchasing position. Based upon conversations in two meetings in which the men discussed management development and a vacant position within the Purchasing Department, Sutton characterizes Bressler's alleged discriminatory remarks as, "I would suggest you find a well-qualified, younger man, someone I can replace you with." He construed these words as conveying a threat to him by Bressler that Bressler wanted to replace Sutton because Sutton was too old. Sutton did not offer other direct evidence of discriminatory animus, but rather focused his arguments on his generally good performance in the company and ARCO's manipulation of the eligibility requirements of its retirement plan in its effort to pressure Sutton to retire.

The court did not credit Sutton's testimony and found that at no time did Bressler express an intention to remove Sutton on the basis of his age or otherwise make any statement indicative of age discrimination against Sutton. Bressler's contrary testimony was that he was criticizing Sutton for not developing management talent within his department, and he stated that a vacant management position should be used as a developmental role for one of the bright young men in the department rather than be consolidated with another position. Even if the court credited Sutton's testimony as to Bressler's alleged remarks, the court could properly find that the remarks did not indicate a discriminatory animus, but rather were an admonition that Sutton was not meeting his responsibility to develop younger executives ultimately to succeed himself or other employees approaching retirement age.

ARCO, through the testimony of Sutton's direct but hostile witnesses, presented several reasons supported by substantial evidence indicating that the decision to seek Sutton's early retirement was not motivated by Sutton's age. These reasons, credited by the District Court and set forth in the findings of fact, centered upon several instances of intemperate and impolitic actions by Sutton in December of 1976 and January of 1977. Apparently, the December 1976 appointment of Snyder as a new supervisor to Sutton, a long-time contemporary and rival within the company, immediately led to unfortunate internecine personality and management style clashes largely between Sutton and his new supervisor and Bressler. The record indicates that Sutton began to repeatedly breach corporate protocol: He approached ARCO's chief executive officer without giving advance notice to superiors in his chain of command. He prepared and presented an executive committee report and refused to share the report and recommendations therein with his superiors prior to the presentation: The report recommended that the Purchasing Department be decentralized so as to remove Sutton's immediate supervisors from his chain of command, and was adversely received. He misrepresented the nature of his communication and the extent of his correspondence with ARCO's chief executive and in other ways attempted to go over the heads of his chain of command.

The court found that these instances of Sutton's conduct constituted reasonable factors other than age which motivated ARCO's management and also established good cause for Sutton's constructive discharge. On at least two instances, Sutton was told of management's displeasure with his recent performance and its opinion that it would be difficult to reconcile management's objectives and Sutton's attitude and performance.

In late January 1977, ARCO's management agreed to inform Sutton of his shaky status within the company and to offer him an enhanced benefits retirement plan under an already expired 1975 Voluntary Early Retirement Supplemental Policy (plan), ⁴ conditioned upon his actual retirement by April 1, 1977. The court's findings of fact succinctly characterize ARCO's utilization of the plan:

"(T)he (management) consensus reached was that Sutton would be informed of management's displeasure with his job performance and his actions of Sutton reluctantly accepted retirement in late February 1977 and instituted this suit some 10 months later. The District Court found, and we agree, that he had two alternatives: (1) continuing in his employment, under an implied threat of possible demotion or discharge, having been accurately informed of his status with management, and knowing that like all other active employees he could only count on normal retirement benefits based upon his last 5 years earnings at such time as he chose to retire, or (2) accepting an immediate retirement under a special retirement plan which would bring him an extra $1,000 a month for life, which plan would not be available if he continued in active employment.

December, 1976 and January, 1977, and be told that substantial improvement would be necessary to remain in his position, that it would be difficult for him to convince management of such improvement. If, after knowing where he stood in the estimation of management, he wished to retire, he would be permitted to retire under the 1975 supplement plan Each of the officials preferred that Sutton retire and thus leave the company's employ rather than remain on the job."

DISCUSSION

The District Court found for purposes of ruling on the 41(b) motion that Sutton was constructively discharged ⁵ by ARCO in the manner and circumstances in which it induced Sutton's retirement, but held that such discharge did not violate the ADEA because Sutton failed to prove that his age was a determining factor in ARCO's action. The court applied correct legal standards and evidentiary guidelines, and the factual findings, dependent upon credibility determinations largely insulated from appellate review, support the Rule 41(b) dismissal.

The evidentiary guidelines allocating the burdens and presentation of proof in discrimination cases as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, though specifically addressed to Title VII cases, 42 U.S.C. § 2000e et seq., are generally applicable to age discrimination cases. See Smith v. University of North Carolina, 632 F.2d 316, 332-33 (4th Cir. 1980); Harpring v. Continental Oil Co., 628 F.2d 406, 408-09 (5th Cir. 1980); McCorstin v. United States Steel Corp., 621 F.2d 749, 752-54 (5th Cir. 1980); Schwager v. Sun Oil Co. of Pennsylvania, 591 F.2d 58, 60-61 (10th Cir. 1979); Loeb v. Textron, Inc., 600 F.2d 1003, 1014-16 (1st Cir. 1979); Cova v. Coca-Cola Bottling Co. of St. Louis, 574 F.2d 958, 959-60 (8th Cir. 1978). The adoption of the McDonnell Douglas Title VII guidelines as to the ordering of proof in age discrimination cases follows logically from the similar purposes and structure of Title VII and the ADEA. The statutes share similar aims and...