Calhoun v. Acme Cleveland Corp.

• Decision Date: 20 August 1986
• Docket Number: No. 85-1952,85-1952
• Parties: 41 Fair Empl.Prac.Cas. 1121, 41 Empl. Prac. Dec. P 36,553 Robert H. CALHOUN, Plaintiff, Appellee, v. ACME CLEVELAND CORPORATION and the Cleveland Twist Drill Company, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 559

798 F.2d 559

41 Fair Empl.Prac.Cas. 1121,

41 Empl. Prac. Dec. P 36,553

Robert H. CALHOUN, Plaintiff, Appellee, v. ACME CLEVELAND CORPORATION and the Cleveland Twist Drill

Company, Defendants, Appellants.

No. 85-1952.

United States Court of Appeals, First Circuit.

Aug. 20, 1986.

William P. Robinson, III with whom John A. Houlihan, Judith C. Savage, and Edwards & Angell, Providence, R.I., were on brief, for defendants, appellants.

Orlando F. de Abreu with whom Kevin J. McAllister, Taunton, Mass., was on brief, for plaintiff, appellee.

Before BOWNES, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BOWNES, Circuit Judge.

Appellants, Acme Cleveland Corporation and its subsidiary The Cleveland Twist Drill Company, appeal from a judgment for their former employee, Robert Calhoun, under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1982).

Calhoun had contended that, after working for appellants and their predecessors for forty-two years, appellants entered into a course of action designed to force him into early retirement at age sixty-two. It was appellants' contention that they merely asked Calhoun whether he wished to take early retirement and that Calhoun voluntarily decided that he would retire. Since appellants did not actually fire Calhoun, a key legal and factual issue in the case was whether appellants' actions could be considered to amount to a constructive discharge. Appellants contend that, as a matter of law, the facts alleged and proven by Calhoun did not amount to a constructive discharge and that the district court erred when it failed to grant appellants' motion for summary judgment, directed verdict or judgment n.o.v. Appellants also claim that they were denied a fair trial because the district court failed to give a requested "anticorporate bias" jury instruction requested by appellants.

We consider first the constructive discharge issue. The basic rules governing constructive discharge in this circuit were laid down in Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir.1977): "the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id. at 119. This is an "objective standard," Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986), in which the focus is upon the "reasonable state of mind of the putative discriminatee." Vaughn v. Pool Offshore Co., 683 F.2d 922, 926 (5th Cir.1982). In making the determination, it must be kept in mind that

"[a]n employee may not be unreasonably sensitive to his [or her] working environment." Johnson [v. Bunny Bread Co.], 646 F.2d [1250] at 1256 [ (8th Cir.1981) ]. Thus the law does not permit an employee's subjective perceptions to govern a claim of constructive discharge.... An employee is protected from a calculated effort to pressure him [or her] into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his [or her] coworkers. He [or she] is not, however, guaranteed a working environment free from stress.

Bristow, 770 F.2d at 1255. The question we must consider, then, is whether, given the factual allegations and evidence presented by Calhoun, there was no constructive discharge as a matter of law. This requires a recitation of the facts.

Aside from three years in the Navy during World War II, Calhoun worked continuously for The Cleveland Twist Drill Company or its predecessor from 1940 until his resignation in 1982. By 1964, he had worked his way up to the position of Manager of the Product Design and Application Department. In every year prior to 1982, Calhoun had received good reviews of his work and yearly raises in pay.

By 1982, The Cleveland Twist Drill Company was having financial problems, particularly because it was not delivering orders on time and was not selling reliable merchandise. As a result, a new plant manager, Clifford Preuss, was hired in February of 1982. On February 17, 1982, Preuss asked all employees eligible for early retirement, including Calhoun who was sixty-two at that time, whether they had any intention of taking early retirement so as to minimize layoffs of junior personnel. Calhoun told Preuss that he wished to continue working until he was sixty-five.

On March 10, 1982, without warning or criticism of Calhoun's past performance, a younger man, Ronald Sabatos, was made Manager of the Product Design and Application Department. Although no cut in his pay was made, Calhoun was demoted to Supervisor of the Department. Thereafter, Calhoun was not invited to participate in a training seminar to which both his immediate superior and junior were invited. Next, Calhoun was told that it was "grounds for dismissal" for him to have brought a portable television into work on Patriot's Day ¹, a day that was a holiday for all nonsupervisory personnel, and watched the start and finish of the Boston Marathon, although similar conduct had occurred in the past without comment.

On May 20, 1982, Calhoun had a second meeting with Preuss concerning his retirement plans, as did all other employees eligible for early retirement. Once again, Calhoun stated that he intended to keep on working. Calhoun had a third meeting with Preuss on August 30, 1982, as did all other retirement-eligible employees. The details of this meeting are in dispute as are other relevant facts.

Calhoun claims that Preuss told him at this meeting that the company was "ready to give him his severance pay and terminate him," albeit with full retirement benefits. The alternative offered by Preuss was that Calhoun would have to be prepared to work a twelve- to fourteen-hour day and Saturdays, as compared to the nine- and nine and one-half-hour day he had been working. Calhoun testified that no one at his level of management had worked such long hours. He also testified that in 1983, after his termination, he had a conversation with his former assistant who told Calhoun that he was not working any longer hours than Calhoun had worked. Preuss testified that Sabatos, the newly hired Product Design Manager, had been working twelve to fourteen hours a day. Preuss also testified that during this August conversation all he did was tell Calhoun about a "new" retirement package that the company had authorized allowing severance for early retirees. Company documents offered by Calhoun, however, indicated that the severance pay provision had been in effect since August of 1981, prior to Calhoun's first meeting with Preuss. Preuss testified that he was unaware of the policy prior to the August 1982 meeting. He also testified that he did not mention any specific number of hours that Calhoun would have to work, but said only that if Calhoun did not choose to retire he would be expected to work the same number of hours as those working under him and possibly some Saturdays. Both Preuss and Calhoun agreed that Calhoun asked Preuss at this meeting whether he could collect unemployment benefits while he was receiving severance pay.

The day after the August 30 meeting, Calhoun told Preuss that he would take early retirement. After leaving The Cleveland Twist Drill Company, where he had been making $34,000 a year with generous benefits, Calhoun sought similar work, but was unable to find it. He worked as a construction worker for $6 to $8 an hour and his income dropped to around $18,000 a year.

Summary Judgment

In his affidavit in opposition to the motion for summary judgment, Calhoun alleged that Preuss had asked him about his retirement plans three times in seven months, that he had been demoted and a younger man promoted to his position, that he had been threatened with a twelve- to fourteen-hour work day and Saturday work if he did not resign, and that he had been informed that no employee had been forced to work these hours after his termination. Appellants claim first that the district court should have struck those paragraphs of Calhoun's affidavit in which he claimed that after his resignation other employees had not worked the long hours he was threatened with because this information was not within Calhoun's personal knowledge. Without this assertion, appellants claim that the events alleged by Calhoun, even if shown to be true, were not sufficient as a matter of law to satisfy the plaintiff's summary judgment burden of proving constructive discharge.

Appellants rely on cases in which one of these factors standing alone was held an insufficient basis for a finding of constructive discharge: Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir.1977) (loss of prestige from job transfer insufficient); Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.1983) (loss of prestige because of particularly precipitious replacement by trainee insufficient); Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir.1982) (pranks, tricks, heavy-handed humor, and being required to work two consecutive hitches not sufficient).

Appellants' theory is that since each isolated incident cannot as a matter of law suffice for a constructive discharge, all of them together must also fail to do so. The fallacy in this "divide and conquer" approach is that these events must be viewed as part of a single behavior pattern by appellants. Even were we to omit the allegations concerning the...