Menard v. First Sec. Services Corp., 87-1772

• Citation: 848 F.2d 281
• Decision Date: 08 January 1988
• Docket Number: No. 87-1772,87-1772
• Parties: 46 Fair Empl.Prac.Cas. 1575, 46 Empl. Prac. Dec. P 38,012, 3 Indiv.Empl.Rts.Cas. 591 Eugene MENARD, Plaintiff, Appellant, v. FIRST SECURITY SERVICES CORPORATION, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 281

848 F.2d 281

46 Fair Empl.Prac.Cas. 1575,

46 Empl. Prac. Dec. P 38,012,

3 Indiv.Empl.Rts.Cas. 591

Eugene MENARD, Plaintiff, Appellant, v. FIRST SECURITY SERVICES CORPORATION, Defendant, Appellee.

No. 87-1772.

United States Court of Appeals, First Circuit.

Heard Jan. 8, 1988.

Decided May 26, 1988.

Paul A. Manoff, Boston, Mass., for plaintiff, appellant.

Joseph W. Ambash with whom Kevin J. Fitzgerald, R. Michael Cassidy and Foley, Hoag & Eliot, Boston, Mass., were on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiff-appellant Eugene Menard appeals from the district court's grant of summary judgment in favor of defendant-appellee First Security Services Corporation ("First Security"). Menard brought this action alleging that First Security discharged him from the position of Area Manager on account of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Secs. 621 et seq. (1982 & Supp. II 1984), and the Massachusetts Anti-Discrimination Act, Mass.Gen.Laws ch. 151B (1982 & Supp.1988). He also charged that First Security committed a breach of contract under Massachusetts law, by firing him in violation of the policies and procedures established in its personnel handbook. Plaintiff further alleged that First Security had not paid him a bonus that was agreed upon by the parties. After completion of substantial discovery, the district court allowed defendant's motion for summary judgment on all counts on March 26, 1987. The court gave no reason other than citing this court's opinion in Dea v. Look, 810 F.2d 12 (1st Cir.1987). ¹ Menard appeals from the district court's grant of summary judgment on both the ADEA and contract claims. ²

I.

Because this is an appeal from summary judgment in favor of the defendant, we state the facts in the light most favorable to the plaintiff. Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984). First Security is one of the largest, privately owned security companies in New England. Menard was hired by defendant in January 1981 at the age of 52, as part of First Security's management team. He was discharged in March 1984, by which time he was age 55.

Menard's first assignment for defendant was as Wang Operation Manager, a post he had from February 1981 to August 1982. As Wang Operation Manager, he was responsible for the day-to-day management of uniformed security services for Wang Laboratories facilities. Plaintiff's immediate supervisors, Robert Jackson and Ronald DeLia, praised his performance as Wang Operation Manager. On February 22, 1982, DeLia wrote Menard a letter describing his performance at Wang over the past 12 months as "outstanding." On June 17, 1982, DeLia sent Menard a second letter again praising his "outstanding performance" at Wang. First Security concedes that during his first 16 months as Wang Operation Manager Menard performed his duties adequately. However, defendant presented evidence that during the summer of 1982 Menard's performance deteriorated. Thomas DiLillo, Wang's Director of Worldwide Facilities Operation, stated in a deposition that during the summer of 1982 he met with First Security's President, Robert Johnson, and Vice-President, John Cauley, and complained to them about communication problems between Wang and Menard. In this meeting DiLillo specifically called to the attention of Johnson and Cauley problems that Wang was having with Menard, and with the general operation of First Security. DiLillo testified that, prior to Menard's assignment as Operation Manager, Wang had not had any major problems with First Security. DiLillo described the problems Wang was having while Menard was Operation Manager as "major problems," specifically complaining that there was no accurate communication between First Security and Wang. Shortly after the meeting between DiLillo and Johnson, Menard was transferred out of Wang. DiLillo testified that relations between the two corporations, as well as First Security's general performance, improved when a new area manager was assigned.

Menard was transferred to a sales and marketing position in southern Connecticut in August 1982. While acting as salesperson in Connecticut, Menard asserts that he was instrumental in obtaining several new clients for First Security. Defendant's evidence was less favorable, although recognizing that Menard was of assistance in getting one major account. For present purposes we accept plaintiff's assertion that he performed well while at his post in Connecticut.

In March 1983 Menard was again transferred, this time to the post of Assistant Area Manager in Boston. First Security concedes that plaintiff performed his duties adequately during his brief four months in this position. Due in part to his adequate performance in Boston, Menard was transferred in July 1983 to the post of Framingham Area Manager. Both parties agree that this was a promotion.

Prime Computer, Inc., is one of defendant's most important clients in the Framingham area, generating approximately $1.1 million and $1.2 million in business for First Security in 1983 and 1984. Menard admits that while he was Framingham Area Manager, Prime Computer had frequent day-to-day problems with defendant's services. Richard Guilmette, Prime Computer's Manager of Corporate Security and Safety, testified in a deposition that during the time Menard was First Security's Area Manager, Prime Computer had so many problems in its relations with First Security that it considered terminating the contract between the parties. In December 1983 Guilmette requested and obtained an emergency meeting with First Security's President, Robert Johnson, to discuss the problems Prime Computer was experiencing. Guilmette specifically complained to Johnson about poor communication between the two corporations, understaffing, and lack of uniforms for the security officers. Guilmette threatened to terminate the account if the problems were not satisfactorily resolved. After the meeting, Johnson sent a letter to Dennis Moschella, Prime Computer's Operation Manager, and to Guilmette, assuring, among other things, that "whatever communications difficulties that have existed in the past will be corrected immediately and in a manner that assures no repetition."

Johnson decided to terminate Menard in March 1984. Menard was replaced as Framingham Area Manager by Patrick Curran, then 30 years old. Guilmette testified that Prime Computer has not experienced any major problems in its account with First Security since the removal of Menard as Area Manager.

Menard argues that the problems that Wang and Prime Computer had with First Security while he was Area Manager were related to matters not under his control. He alleges that the only reason for the action against him was to discriminate because of his age.

II.

A motion for summary judgment must be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Not every factual dispute will defeat a motion for summary judgment.

[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We have recently restated the standard of review in an appeal from a judgment granting a motion for summary judgment:

[W]e must view the record in the light most favorable to the party opposing the motion, and must indulge all inferences favorable to that party. The party opposing the motion, however, may not rest upon mere allegations; it must set forth specific facts demonstrating that there is a genuine issue for trial.

Oliver v. Digital Equipment Corp., 846 F.2d 103, 105, (1st Cir. 1988) (citing Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984); King v. Williams Industries, Inc., 724 F.2d 240, 241 (1st Cir.), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984)). Summary judgment will be precluded if there is a dispute "over facts that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

Plaintiff alleges he was fired because of his age. Under the ADEA the plaintiff must prove that age was the determinative factor in his discharge, i.e., that he would not have been discharged but for his employer's motive to discriminate against him because of his age. Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). A prima facie case of age discrimination is made by showing that 1) plaintiff was within the protected age group; 2) he was demoted or discharged; 3) he was replaced by a younger person or a person outside the protected age group; and, 4) he was qualified to do the job. Dea v. Look, 810 F.2d at 14 n. 1. Once the plaintiff has carried out his burden of proving a prima facie case, the burden then shifts to the employer to articulate, not prove, a non-discriminatory reason for its action. If the defendant articulates lawful reasons for its action, the presumption created by the prima facie case is dissolved, and plaintiff must then prove by a preponderance of the evidence that the defendant's true motive was age discrimination. Loeb v. Textron, Inc., 600 F.2d at 1011. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981).

First Security argues that summary judgment was proper in this case because Menard failed to establish a prima facie case of age discrimination. First Security does not dispute that Menard is within the protected age group, that he was...