707 F.3d 417 (3rd Cir. 2013), 11-3752, Burton v. Teleflex Inc.

Docket Nº:11-3752.
Citation:707 F.3d 417
Opinion Judge:GREENAWAY, JR., Circuit Judge.
Party Name:Mary BURTON, Appellant v. TELEFLEX INCORPORATED; Teleflex Medical Incorporated; Specialized Medical Devices, LLC; Edward Boarini; Sean O'Neill.
Attorney:Nina B. Shapiro, Esq., (Argued), Lancaster, PA, for Appellant Mary Burton. David S. Fryman, Esq., (Argued), Alexandra Bak-Boychuk, Esq., Ballard Spahr, Philadelphia, PA, for Appellees Teleflex, Inc., Teleflex Medical Inc., Specialized Medical Devices LLC, Edward Boarini, Sean O'Neill.
Judge Panel:Before: AMBRO, GREENAWAY, JR., and O'MALLEY,[*] Circuit Judges.
Case Date:February 20, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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707 F.3d 417 (3rd Cir. 2013)

Mary BURTON, Appellant


TELEFLEX INCORPORATED; Teleflex Medical Incorporated; Specialized Medical Devices, LLC; Edward Boarini; Sean O'Neill.

No. 11-3752.

United States Court of Appeals, Third Circuit.

February 20, 2013

Argued Sept. 20, 2012.

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Nina B. Shapiro, Esq., (Argued), Lancaster, PA, for Appellant Mary Burton.

David S. Fryman, Esq., (Argued), Alexandra Bak-Boychuk, Esq., Ballard Spahr,

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Philadelphia, PA, for Appellees Teleflex, Inc., Teleflex Medical Inc., Specialized Medical Devices LLC, Edward Boarini, Sean O'Neill.

Before: AMBRO, GREENAWAY, JR., and O'MALLEY,[*] Circuit Judges.


GREENAWAY, JR., Circuit Judge.

Appellant Mary Burton (" Burton" ) alleges that her employer, Teleflex Inc. (" Teleflex" ),1 terminated her employment in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. Burton also alleges various state law discrimination, contract, and tort claims against Teleflex. Teleflex claims that it did not terminate Burton's employment, but that she in fact resigned her position. The United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of Teleflex on Burton's discrimination claims, finding that Burton had resigned, and that even if she had not, she could not demonstrate that Teleflex's purported justification for sending her the letter " accept[ing her] resignation" was pretextual. The District Court also granted summary judgment to Teleflex on all of Burton's state law claims. Because the record clearly demonstrates that a dispute of material fact exists as to whether Burton resigned or was terminated, we vacate the District Court's grant of summary judgment on Burton's discrimination claims and breach of contract claim. We affirm the grant of summary judgment on Burton's claims for breach of the covenant of good faith and fair dealing, wrongful interference with contractual relations, and defamation.


Burton was the founder of two companies that manufactured and distributed medical device parts. She founded HDJ during the 1960's and formed Specialized Medical Devices (" SMD" ) in 1993. Burton served as the companies' President, and her son Edward Burton (" Edward" ) was the General Manager and Vice President. By 2006, the companies grew to employ approximately 140 people and generated an annual revenue of $14 million. In 2007, Burton sold HDJ and SMD to Teleflex Inc. After acquiring the companies, Teleflex discontinued the HDJ division and incorporated SMD into the Teleflex Medical OEM business.

As part of the transaction, Burton and Edward each entered into a separate two-year long employment agreement with Teleflex. Burton's employment agreement (the " Employment Agreement" or " Agreement" ) provided that she could terminate her employment with Teleflex by providing written notice at least thirty days before her termination would become effective. This is the only provision regarding Burton's authority to terminate the Agreement. On the other hand, Teleflex could terminate Burton in one of two ways. First, it could fire Burton without cause by providing written notice at least thirty days before her termination would become effective. Second, Teleflex could fire Burton

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for cause, upon written notice.2 Under the Employment Agreement, Burton would be entitled to severance if Teleflex terminated her without cause.

Burton, age sixty-seven at the time of the sale, became Vice President of New Business Development at SMD. Her duties included directing and supervising the sales department at SMD, overseeing the customer service of existing accounts, developing new business, and preparing price quotations for customers. Burton had performed these same duties at SMD prior to the sale to Teleflex.

From the fall of 2007 until the end of her employment with Teleflex, Burton was supervised by Edward Boarini (" Boarini" ), Senior Vice President and General Manager of Teleflex Medical OEM. Burton and Boarini had a strained professional relationship, and communication between the two was infrequent. 3 As Vice President of New Business Development, Burton supervised the sales department for SMD. However, in February or March 2008, Dave Faris (" Faris" ), a male in his forties, was transferred from another Teleflex division to be the director of sales for SMD, and the sales team then began reporting to him instead of Burton. Boarini acknowledged that " sales leadership ... was a duty [of Burton's] that was removed." (App. 504.) Boarini also told Faris " to work very closely with [Burton]" and to learn from her. (App. 738; see also App. 373-74, 505.)

The problems between Burton and Boarini came to a head on June 3, 2008. That day, the two attended a medical device trade show in Manhattan. Boarini stated that he intended to discuss with Burton her lack of communication and undefined performance objectives. At their depositions, both parties recounted their version of the conversation.

Burton testified about the encounter:

[A]nd I came up to Ed [Boarini] and I said, I asked him when he wanted to get together because he had talked to me on the phone the previous Friday and mentioned that he wanted to meet with me.

So when I got there I went to him and asked him when did he want to get together and he couldn't really even look me in the face. He said, Oh, well, he was going to be really busy, he had all these customers he had to see, he didn't have time that day, he didn't think he would have any time the next day, he was too busy, and then he talked about maybe I can give you ten minutes or so on Thursday, and I said, you know, I made all my appointments to be later because I thought you were very specific about wanting to get together with me, and he was just kind of treating me like I wasn't even there and he was treating me like a useless old woman and just like I wasn't there, and he couldn't come

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up with any answer. It was like what do you mean I want to see you.

I mean, he just was pretty much just trying to get rid of me. And I finally pressed it, I said, are you asking for me to resign? Do you want me to resign? That's what I said to him. Do you want me to resign?

He said, Oh, no, no, we want you here for a long time to come and he was like, Oh, no, no, that's not what I mean at all. We need you. We want you for a long time.

And I don't know if too much more happened right at that moment, but I started to walk away and shortly thereafter he said to me, he said, I think you should think about that.

(App. 137.)

Boarini's testimony was fairly consistent with Burton's account:

I had gone there with every intention to try to have a dialogue with Mary Burton and determine what she wanted to do with the business because she had not had any progress on her performance objectives or any kind of dialogue. And within a few minutes of talking to her about setting up a time to have that conversation, she resigned....

She asked me if I wanted her to resign. I said, no. Wait. Let's talk through this. Let's have a dialogue. Let's understand what we can do because we knew— I felt the relationship with her was not working to the betterment of the business.

And twice she said, do you want me to resign? And I said, no. The third time is when I said, maybe you should think about retiring. That's when she decided to resign.

(App. 185.)

Despite Boarini testifying that Burton resigned at the end of their conversation, he acknowledged that Burton never explicitly said that she was resigning. As Boarini recalled, the conversation ended when Burton disengaged and walked away. However, two other Teleflex employees at the trade show, Faris and Jack Fulton (" Fulton" ), claimed that Burton informed them on June 3, 2008, that she had resigned when she returned to the Teleflex booth after her conversation with Boarini. These two employees then told Boarini that Burton had resigned. Based on his conversation with Burton, and the accounts of Faris and Fulton, Boarini determined that Burton had resigned.

The next day, Wednesday, Burton met with Faris to discuss a work-related matter. Burton did not return to Teleflex's booth on Wednesday or Thursday, the latter of which she claimed was because she was upset about the conversation with Boarini. On Friday, Burton left on a one-week vacation that she had scheduled several weeks prior to the incident with Boarini's knowledge and approval.

It is unclear if Burton had any contact with the office while she was away on vacation.4 On the day that she was scheduled to return to work, June 16, 2008, Burton received a letter from Sean O'Neill (" O'Neill" ), Vice President of Global Human Relations for Teleflex Medical, stating that Teleflex was formally " accept[ing her] resignation." (App. 211.) Even though Burton was not entitled to severance in the event that she resigned, the letter stated that Burton would receive six months' severance

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if she extended the non-competition and non-solicitation clauses in her Employment Agreement. The severance was also conditioned on her releasing Teleflex from any liability relating to her employment. O'Neill later testified that he determined that Burton had resigned in reliance on Boarini's assessment and the statements from other employees that Burton had told them she resigned.

On June 16, 2008, the same day as O'Neill's letter to Burton, Teleflex sent a letter to its customers stating that Burton " decided to leave the company to pursue other opportunities." (App. 436.) Boarini emailed Teleflex employees the next day, June 17, 2008, to tell them that Burton had left the company " to pursue other...

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