Hollander v. American Cyanamid Co., Docket No. 98-7502

• Decision Date: 29 March 1999
• Docket Number: Docket No. 98-7502
• Citation: 1999 WL 170733,172 F.3d 192
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 882 Arthur HOLLANDER, Plaintiff-Appellant, v. AMERICAN CYANAMID COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 192

172 F.3d 192

79 Fair Empl.Prac.Cas. (BNA) 882

Arthur HOLLANDER, Plaintiff-Appellant, v. AMERICAN CYANAMID COMPANY, Defendant-Appellee.

Docket No. 98-7502.

United States Court of Appeals, Second Circuit.

Argued Dec. 15, 1998.

Decided March 29, 1999.

Mark F. Heinze, Hackensack, NJ (Monaghan, Monaghan, Lamb & Marchisio, of Counsel), for Plaintiff-Appellant.

Albert Zakarian, Hartford, CT (Day, Berry & Howard, Daniel A. Schwartz, Keith S. Marks, of Counsel), for Defendant-Appellee.

Before: FEINBERG, CALABRESI and SOTOMAYOR, Circuit Judges.

Judge CALABRESI concurs in the opinion of the Court, and also files a separate opinion.

FEINBERG, Circuit Judge:

Plaintiff Arthur Hollander appeals from the grant of summary judgment in the United States District Court for the District of Connecticut, Warren W. Eginton, J., in favor of defendant American Cyanamid Company. As of this writing, Hollander's case has been in the federal courts for more than 13 years. This is also the second time that this court has heard the matter, having remanded the case more than eight years ago in order to allow Hollander to conduct additional limited discovery. Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir.1990). Hollander appeals principally from the dismissal of his action asserting a claim for age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et. seq. He also appeals from the partial grant of Cyanamid's motion to strike various portions of his affidavit submitted in support of his memorandum in opposition to Cyanamid's motion for summary judgment. The district court dismissed the suit on the ground that Hollander's evidence was insufficient to create an inference that Cyanamid discriminated against him because of his age. See Hollander v. American Cyanamid Co., 999 F.Supp. 252 (D.Conn.1998). For the reasons stated below, we affirm.

I. Background

Hollander began his career with Cyanamid in 1956 as an employee at the company's Wallingford, Connecticut facility. He was 30 years old. He left the company in 1960, and returned in 1973 to assume the position of Manager of Management Engineering at Cyanamid's Lederle facility in Pearl River, New York. At the time of his rehire, he was 47.

As Manager of Management Engineering, Hollander received a yearly progress review from his supervisors that rated his ability in several specific areas. The reviews also included comments that elaborated upon or supplemented the ratings. Hollander's reviews show that Cyanamid was consistently impressed with his creativity and commitment to his job. He also received regular salary increases, bonuses and stock options. However, the progress reviews, which were conducted by four different supervisors over the course of Hollander's re-employment at Cyanamid, also consistently documented the perception that Hollander has an abrasive management style and a difficult personality (hereinafter referred to collectively as "interpersonal problems"). Hollander's 1974 review noted that he had "created some antagonism by 'shooting from the hip.' " His 1976 review stated that "[i]mprovement is needed in establishing a higher confidence with middle management and communicating on a level which they understand." Hollander's 1977 review rated him as "needs improvement," the lowest possible rating, in the category of "communication," and noted that Hollander needed to "be more understanding of ... managers' problems and less antagonistic." In 1978, he was rated as "needs improvement" in both "communication" and "human relations." The review commented that Hollander needed improvement "in following communications lines" and that "[t]he tendency to go over anyone who does not immediately respond must be changed." While Hollander's January 1980 review rated him "consistently acceptable" in the categories of "communication" and "human relations," the perceived problems returned in his December 1980 review, in which he was once again rated as "needs improvement" in those categories.

In 1981, Cyanamid transferred Hollander to its Davis & Geck facility in Danbury, Connecticut, and appointed him Manager of Medical Devices. The change of setting, however, did not alter the pattern established in Hollander's earlier reviews. His 1981 review rated him as "needs improvement" in "human relations." In 1982, he received a "needs improvement" rating in "human relations," "safety," and "maturity & judgment." The review noted that "several projects are not getting proper attention because of interpersonal relationship problems."

Hollander received his worst review in 1983, in which supervisor Robert Duckett rated him as "needs improvement" in the areas of "communication," "human relations," "personnel development," "leadership" and "organizing/staffing." Duckett elaborated:

[Hollander's] major problem is a total lack of comprehension of the vital necessity of properly considering all of the appropriate functional groups which must be involved for successful completion and execution of complex projects. He leaves a "trail of wreckage" of interpersonal and inter departmental relationships which eventually inhibit the success of the projects. He seems to ignore the vital "people function" almost completely, and doesn't comprehend this effect. He operates like a "one man gang" which is not acceptable in a complex, multi-functional team oriented business.

In addition, Hollander's overall job performance for that year was rated as "needs improvement," the second-worst possible overall rating. ¹

Cyanamid terminated Hollander in January 1984. At the time, he was 58 years old. ² He was given six months of severance pay and was told that his management profile would be circulated within Cyanamid to determine if a different division was interested in his services. Hollander was discharged permanently in August 1984. Just before that--in July 1984--he filed age discrimination complaints with the Connecticut Commission on Human Rights and Opportunities (CCHRO) and the Equal Opportunity Employment Commission (EEOC).

In October 1984, Hollander sought employment with Ethicon, Inc., a medical device manufacturer and competitor of Cyanamid. Hollander offered to show Ethicon a Cyanamid film demonstrating the application of automation to suture manufacturing, which led Ethicon to contact Cyanamid regarding both Hollander and the film. Cyanamid wrote Hollander, stating that his employment at Ethicon would be inconsistent with a non-competition agreement he had signed in 1973, and that his offer to show Ethicon the film infringed Cyanamid's proprietary rights. Without mentioning the non-competition agreement or the dispute over the film, Ethicon informed Hollander that it would not be offering him a position.

In August 1985, Hollander filed suit in the United States District Court for the District of Connecticut, claiming that Cyanamid discharged him in violation of the ADEA. He also claimed that Cyanamid's opposition to his employment at Ethicon was retaliation for the initial complaints he had brought before the CCHRO and the EEOC and, as such, was a second violation of the ADEA. Hollander further contended that Cyanamid's alleged retaliation amounted to tortious interference with a business expectancy under Connecticut law. Finally, he alleged that Cyanamid's practices violated federal and state antitrust laws and state law prohibitions on unfair trade practices. Hollander later dropped the antitrust and unfair trade practices claims.

In March 1989, the district court granted Cyanamid's motion for summary judgment on Hollander's ADEA claims. The court held that Hollander had failed to show a nexus between his age and his discharge, and had failed to link Cyanamid's conduct regarding Ethicon to Hollander's filing of discrimination charges with the CCHRO and the EEOC. Because Hollander's federal claims had been disposed of by summary judgment, the district court also dismissed Hollander's remaining state law tortious interference claim for lack of jurisdiction.

On appeal to this court, the judgment of the district court was vacated in part, affirmed in part and remanded. 895 F.2d 80. The panel affirmed the district court's judgment as to Hollander's retaliation claim. Id. at 85-86. However, the panel also held that the district court had erred when it refused to compel Cyanamid to answer an interrogatory asking it to identify each management-level employee over the age of 40 whose employment with Cyanamid had been terminated since 1983. Id. at 85. The panel accordingly remanded the case, deeming the additional discovery necessary to allow Hollander the opportunity to gather statistical evidence which "might uncover a pattern of older management employees leaving ... Cyanamid under unexplained circumstances, which might help prove his claim that ... Cyanamid's explanation for his discharge was pretextual." Id. at 84. The panel noted that "if following the completion of discovery, the district court finds that Hollander has not established a genuine issue of material fact suggesting that ... Cyanamid's discharge of Hollander was pretextual, it may enter summary judgment for ... Cyanamid." Id. at 85.

After remand, Hollander expanded his discovery efforts to include several additional interrogatories and requests for production other than the single interrogatory at issue on the prior appeal. When Cyanamid did not respond to the additional requests, Hollander filed a Motion to Compel and for Sanctions. Recommending denial of the motion in November 1994, Magistrate Judge Thomas P. Smith noted that Hollander had "received discovery of an extent unprecedented in this magistrate's experience of over 15 years," and "well beyond the contemplation of the Second Circuit's decision, which the magistrate has interpreted with great fairness toward [him]." The district court adopted the recommendation.

In April 1997, Cyanamid moved for summary...