Bristow v. Daily Press, Inc.

Decision Date22 August 1985
Docket NumberNos. 84-2021,s. 84-2021
Citation770 F.2d 1251
Parties38 Fair Empl.Prac.Cas. 1145, 38 Empl. Prac. Dec. P 35,572 James B. BRISTOW, Appellee, v. The DAILY PRESS, INC., Appellant. James B. BRISTOW, Appellant, v. The DAILY PRESS, INC., Appellee. (L), 84-2039.
CourtU.S. Court of Appeals — Fourth Circuit

John P. Connors, Washington, D.C. (William J. Butler, Jr., Hanson, O'Brien, Birney & Butler, Washington, D.C., Bernard J. DiMuro, Charles M. Rust-Tierney, Hirschkop & Grad, P.C., Alexandria, Va., on brief), for appellant/cross-appellee.

Frederick E. Popovitch, Point Pleasant, N.J. (William H. McKinnon, Popovitch & Popovitch, Point Pleasant, N.J., on brief), for appellee/cross-appellant.

Before RUSSELL and WILKINSON, Circuit Judges, and KNAPP, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.

WILKINSON, Circuit Judge:

This appeal presents a question of constructive discharge in the law of employment discrimination. Plaintiff James B. Bristow brought suit against his former employer, The Daily Press, Inc., under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 (1982) et seq., complaining that he had been denied promotions and forced to resign because of his age. The case was tried before a jury, which found for the employer on the promotion denial claims, and for Bristow on the constructive discharge claim, awarding plaintiff $99,000 in damages for lost wages and $50,000 in liquidated damages. Judgment was entered accordingly, the district court also allowing attorney's fees of $8,825 and costs of $1,500 for plaintiff. Defendant's motion for judgment n.o.v. on the constructive discharge claim was denied.

We reverse. While we are mindful of the deference due a jury verdict, after reviewing the evidence we are convinced that defendant's motion for judgment n.o.v. should have been granted. Plaintiff demonstrated little more than job dissatisfaction which will not support a constructive discharge claim.

I

Bristow worked as a district manager for The Daily Press, Inc. from 1965 until his resignation in September 1981 at the age of 64. 1 A district manager oversees carriers that distribute newspapers to customers and collects the bills when due. On October 15, 1980, Bristow was assigned to manage District 25, located in the city of Hampton, Virginia. This was an unusually large district, some 27 miles in circumference, containing a cross-section of customers, from the prominent to the poor. It included two low income areas. Bristow had 57 carriers under his supervision, 55 of whom handled home delivery, while two had motor routes. He collected about $2,000 per week. Above Bristow in authority were John Goodwyn, the circulation director; Daniel Cruey, the assistant circulation director; and Jean Burdick, the division manager who was Bristow's immediate supervisor. Goodwyn and Bristow, as both testified, had a "very good" relationship.

Cruey told Bristow, upon placing him in charge of District 25, that this would be his "final assignment." Previously Bristow had been a "swing man," a substitute district manager assigned to various districts as needed. Bristow, however, suspected that management also wanted him "out" because he was too old, and that he was being sent to a district with unique problems. Bristow did encounter a number of difficulties in managing District 25, including poor collections in the two low income areas, turnover of carriers on certain routes, fluctuating costs for the rural motor routes, and lack of financial documentation. Burdick helped him less than he desired.

None of the evidence offered, however, indicated that District 25's problems were in any way unique. Nelson Salway, a witness for plaintiff and his predecessor as manager of District 25, had experienced similar difficulties with collections, carrier turnover, motor routes and circulation overruns, but did not regard them as unusual. He observed that there "were problems with every district," compounded in District 25 simply due to its greater size. All district managers, according to Salway, confronted difficulties of the same nature. Other witnesses familiar with the tasks of a district manager corroborated Salway's description. Robert Grey, Bristow's successor in District 25 and another witness called by plaintiff, described the problems in District 25 as "minor" and attributed them to improper management, believing that greater cooperation between Burdick and Bristow was needed. District 25, he asserted, was not a "problem" district but simply very large. Grey considered the district as "basically in pretty good shape," remarking that "[a]nybody that really had any knowledge of circulation work could have gone in and made the changes that I did." William Rogers, a manager of another district, recognized that all districts had problems like those in District 25. Bristow himself acknowledged that his troubles in District 25 diminished after he had been in charge for three to four weeks. By then he felt that he was "accomplishing something," having managed to "stabilize" his territory.

Bristow was principally criticized by superiors over his financial accountability. Circulation overruns arose when carriers failed to notify the company of how many newspapers they needed; this was a familiar problem, and as Salway remarked, "everyone complained about that." The company held its district managers responsible when carriers did not pay their outstanding accounts, though Bristow believed that he was not responsible for the carriers' circulation problems. Bristow admitted that he also co-mingled company and personal funds, but regarded the company at fault for not giving him sufficient change to handle collections.

Bristow's district was audited on August 1, 1981, and he was blamed for several outstanding accounts. He learned from Burdick on September 5 that there was "talk" of forcing him into "early retirement." 2 On September 9, Bristow was called to a meeting with Goodwyn, Cruey and Burdick, and presented with a list of uncollected accounts totaling $561.34. Although Bristow's job performance was discussed by his superiors, no one threatened to fire him, nor did he offer to resign. Cruey proposed, rather, that Bristow pay half of the outstanding accounts, while the company would write off the remainder. Bristow accepted this arrangement, and shortly thereafter paid the company $281.17, believing it necessary to avoid being fired. He still did not consider himself responsible for the carriers' mistakes.

No evidence indicated that the employer would have taken any further action against Bristow. Both Bristow and Burdick had contended, in the course of the meeting, that the district was too large for one person to handle efficiently. Cruey noted this point in his record of the discussion. Goodwyn, summarizing the outcome in a September 9 memorandum, did not fault Bristow, but instead criticized Burdick's supervision of District 25. Nevertheless, following the meeting Bristow concluded that he was being "ganged up on and forced out" because of his age, and he decided to resign. 3 He presented a letter to Goodwyn and to William Van Buren, president of The Daily Press, on September 10, stating that he was resigning for "personal" reasons, effective at the end of the month. According to Bristow, Goodwyn asked, "Is this necessary?," and Bristow rejoined, "Yes, I think it is."

Later, on September 16, Bristow approached Goodwyn and Van Buren in an unsuccessful attempt to rescind his resignation. In discussions after Bristow submitted his retirement request, Burdick encouraged him not to reconsider in light of his age. Bristow once again spoke to Goodwyn on September 21, but now was concerned only that he would lose some retirement benefits because he was retiring before age 65. Goodwyn contacted Van Buren about the matter, and on September 30, Van Buren notified Bristow that his retirement benefits would be supplemented by an additional $15.03 per month, so as to put him in the same position as if he had retired normally. Bristow's retirement became effective on October 1, 1981.

II

An employee must have been discharged to state an ADEA claim arising from loss of his job. 29 U.S.C. Sec. 623(a)(1). The law affords no protection from discrimination unless there has been some adverse employment action by the employer. Because Bristow was not actually discharged, he relies here on a theory of constructive discharge. This claim is not supported by the evidence. The fact that problems and tensions are encountered on the job does not suffice to establish constructive discharge. Here those problems were part and parcel of what one would expect in a position in newspaper circulation and bill collection.

A constructive discharge occurs when "an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job." Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1395, 84 L.Ed.2d 784 (1985) (Title VII), quoting J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494 (4th Cir.1972) (labor). Accord, Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983); Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir.1981); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981); Young v. Southwestern Savings & Loan Assn., 509 F.2d 140, 144 (5th Cir.1975); Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). A plaintiff alleging constructive discharge must therefore prove two elements: deliberateness of the employer's action, and intolerability of the working conditions.

Deliberateness exists only if the actions complained of "were intended by the employer as an effort to force the employee...

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