Hollander v. American Cyanamid Co.

• Decision Date: 30 January 1990
• Docket Number: D,No. 120,120
• Parties: 51 Fair Empl.Prac.Cas. 1881, 52 Empl. Prac. Dec. P 39,610, 15 Fed.R.Serv.3d 902 Arthur HOLLANDER, Appellant, v. AMERICAN CYANAMID CO., Appellee. ocket 89-7402.
• Court: U.S. Court of Appeals — Second Circuit

Page 80

895 F.2d 80

51 Fair Empl.Prac.Cas. 1881,

52 Empl. Prac. Dec. P 39,610, 15 Fed.R.Serv.3d 902

Arthur HOLLANDER, Appellant, v. AMERICAN CYANAMID CO., Appellee.

No. 120, Docket 89-7402.

United States Court of Appeals, Second Circuit.

Argued Sept. 27, 1989.

Decided Jan. 30, 1990.

Arthur Hollander, appellant pro se.

Albert Zakarian, Day, Berry & Howard, Hartford, Conn., for appellee.

Before OAKES, Chief Judge, and PIERCE and RUBIN, ^* Circuit Judges.

OAKES, Chief Judge:

Arthur Hollander appeals from a judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, granting Hollander's former employer, American Cyanamid Company, summary judgment on Hollander's claims under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 623 et seq. (1982 & Supp. V 1987), and dismissing his Connecticut state law claim for tortious interference with a business expectancy. We affirm in part, vacate in part, and remand.

BACKGROUND

In 1973, Hollander was hired by American Cyanamid as Manager of Management Engineering for its Lederele Laboratories and Davis & Geck Divisions in Pearl River, New York. By most indications, Hollander performed well in this capacity. From 1973 to 1980, he consistently received salary increases, bonuses, and stock options; company job evaluations noted that he "excels in several areas."

In 1981, American Cyanamid promoted Hollander to the position of Manager of Medical Devices at the Davis & Geck facility in Danbury, Connecticut. Hollander's duties in large part involved overseeing projects leading to the development of a skin stapler designed to replace traditional sutures and of a hemostat designed to prevent bleeding during operations. Hollander continued to enjoy solid job performance evaluations, with his 1980 rating giving him a "+" designation for "excel[ling] in several major areas"; with his 1981 rating reporting that he "excels in several major areas," although without the "+"; and with his 1982 rating stating that Hollander "achieves expected results." As a measure of his success, Hollander received additional bonuses and stock options during 1981 and 1982.

For some time, however, negative assessments of Hollander's interpersonal skills slightly tarnished the otherwise positive appraisals of his job performance. While for most categories Hollander was graded as either "consistently acceptable" or "superior," his ratings in both "communications" and "human relations" hovered somewhere between "consistently acceptable" and "needs improvement." Starting in 1982, company evaluations began to place increasing emphasis upon his problems in getting along with his co-workers. A 1982 progress report made specific mention of how Hollander's interpersonal difficulties impeded successful job performance.

In 1983, Hollander's job rating turned quite sour. He was said to need improvement in five categories--human relations, communications, personal development, leadership, and organization and staffing. Detailed written comments described his management style as so abrasive that it undermined employee morale and endangered project success. Hollander's overall job performance was evaluated as "needs improvement," the lowest of the three possible categories. Hollander's supervisors recommended finding him work elsewhere in the company, not involving interaction with other people.

On January 30, 1984, American Cyanamid relieved Hollander, then fifty-seven years old, of his responsibilities as Manager of Medical Devices. Hollander was retained for six months, while the company On July 10, 1984, Hollander filed age discrimination complaints with the Connecticut Commission on Human Rights and Opportunities (CCHRO) and the Equal Employment Opportunity Commission (EEOC). In October 1984, Hollander contacted Ethicon, Inc., a rival medical device manufacturer, to seek employment. In his discussion with Ethicon, Hollander offered to show the company a film demonstrating the application of automation to suture manufacturing. The parties dispute whether the film contained proprietary information belonging to American Cyanamid. Ethicon subsequently contacted Robert Duckett, Hollander's former supervisor at American Cyanamid, regarding both the film and Hollander's application. On October 26, 1984, Gill Seal, Director of Operations with Davis & Geck, wrote Hollander, stating that the position Hollander was pursuing with Ethicon was inconsistent with a non-competition covenant Hollander had signed in 1973 and that Hollander's offer to show the film transgressed American Cyanamid's proprietary rights. Without mentioning the non-competition agreement, Ethicon wrote Hollander on October 22, 1984, to indicate that it would not be offering him a position.

unsuccessfully tried to locate him other work. He was discharged permanently on August 1, 1984. According to Hollander, he was replaced by Richard Augsbach and Felix Esposito, approximately one and eleven years younger than Hollander, respectively. Hollander contends that the unfavorable job evaluations were used to conceal American Cyanamid's desire to ease him out of the company because of his age.

On March 17, 1985, Hollander filed a second agency complaint, alleging that American Cyanamid had attempted to block Hollander's efforts to secure employment with Ethicon in retaliation for Hollander's filing of the initial discrimination complaints.

Neither the CCHRO nor the EEOC acted upon Hollander's complaints. Hollander then filed suit on August 23, 1985, in the United States District Court for the District of Connecticut, claiming that American Cyanamid discharged him in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 623(a)(1) (1982), and then retaliated against him for advancing his initial complaints before the state and federal agencies, also in violation of the ADEA. Hollander additionally contended that American Cyanamid's alleged retaliation amounted to a tortious interference with a business expectancy under Connecticut state law. Finally, Hollander charged that American Cyanamid's practices violated federal and state antitrust laws and state law prohibitions on unfair trade practices. Hollander subsequently dropped these latter three claims.

On March 23, 1989, the district court granted American Cyanamid's motion for summary judgment on the ADEA claims. As to Hollander's claim of a discriminatory dismissal, the district court held that Hollander had failed to produce any evidence tending to show a nexus between his age and the reason for his discharge. The district court also found Hollander's retaliation claim lacking in evidence linking American Cyanamid's conduct regarding Hollander's attempt to secure employment with Ethicon to Hollander's earlier filing of discrimination charges with the CCHRO and the EEOC. Finally, because Hollander's federal claims had been disposed of at summary judgment, the district court dismissed Hollander's remaining pendant state law claim as lacking a sufficient jurisdictional basis.

On appeal, Hollander challenges generally the grant of summary judgment in favor of American Cyanamid and specifically the district court's refusal to compel American Cyanamid to answer an interrogatory asking it to identify each management level employee over forty years old whose employment with the company had terminated since January 1, 1983. We agree with Hollander's assertion that the district court improperly restricted discovery and thereby prevented him from presenting evidence potentially helpful to his claim of discriminatory discharge. Consequently, we vacate summary judgment on the discriminatory discharge claim. On the other hand, notwithstanding the district court's erroneous

refusal to compel, we find that it did properly grant summary judgment on the retaliation claim. Accordingly, we affirm in part, vacate in part, and remand.

DISCUSSION

A. Discriminatory Discharge Claim

Because Hollander is over forty years old, he falls within the class of individuals protected by the Age Discrimination in Employment Act. See 29 U.S.C. Sec. 631(a) (Supp. V 1987). Under the ADEA it is unlawful for an employer to discharge an employee because of that employee's age. See 29 U.S.C. Sec. 623(a)(1). Drawing from the Supreme Court's observation that the substantive prohibitions under the ADEA mirror those under Title VII of the Civil Rights Act of 1964, see Lorillard v. Pons, 434 U.S. 575, 584 & n. 12, 98 S.Ct. 866, 872 & n. 12, 55 L.Ed.2d 40 (1978), we have held that the evidentiary framework measuring discrimination under the ADEA borrows from Title VII case law. See, e.g., Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1369 (2d Cir.1989); Montana v. First Federal Savings & Loan Ass'n, 869 F.2d 100, 103 (2d Cir.1989); Pena v. Brattleboro Retreat, 702 F.2d 322, 323-24 (2d Cir.1983); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). In considering a disparate treatment claim, as presented in this case, we thus follow the three-step burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under McDonnell Douglas and Burdine, the plaintiff first must establish a prima facie case of discrimination. The burden then shifts to the employer to counter the prima facie case by advancing a legitimate, non-discriminatory reason for its actions. The plaintiff in turn may attack the employer's explanation by showing evidence that the purported non-discriminatory reason was not true and in fact was a pretext for discrimination. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 2033-34; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25.

In an ADEA action, the plaintiff establishes a prima facie case by showing that ...