Molinar v. Western Elec. Co., No. 75--1374

Citation525 F.2d 521
Decision Date22 March 1976
Docket NumberNo. 75--1374
PartiesRobert L. MOLINAR, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Robert L. Molinar, pro se.

John M. Harrington, Jr., Boston, Mass., with whom William G. Meserve, Thomas B. Wheatley and Ropes & Gray, Boston, Mass., were on brief, for appellees.

Before CAMPBELL, Circuit Judge, JULIAN and SKINNER, District Judges. *

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiff sued to redress grievances arising out of his employment as a labor attorney with the Western Electric Company from January 23, 1967, to April 15, 1968. At the close of all the evidence the district court directed a verdict for defendants, and plaintiff appeals.

We state the facts in the light most favorable to plaintiff, but without neglecting the uncontradicted evidence introduced by defendants. Pence v. United States, 316 U.S. 332, 338--40, 62 S.Ct. 1080, 86 L.Ed. 1510 (1942); Dehydrating Process Co. v. A. O. Smith Co., 292 F.2d 653, 656 n.6 (1 Cir.), cert. denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194 (1961); Hobart v. O'Brien, 243 F.2d 735, 741 (1 Cir.) cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L.Ed.2d 42 (1957).

Plaintiff Robert L. Molinar worked as industrial relations and litigation counsel for Raytheon Company in Lexington, Massachusetts, from June 1960 until his employment by Western Electric in early 1967. At Raytheon Molinar had principal responsibility for the legal aspects of the company's personnel and industrial relations problems. The vice president and general counsel at Raytheon, who supervised and directed Molinar's work beginning in 1963, testified that Molinar 'performed his work to my complete satisfaction.' Molinar's annual salary in 1966 was set at $22,500.00.

While at Raytheon, Molinar submitted a personal resume to the American Bar Association Lawyer Placement Service expressing interest in a job with a higher salary, at least in the 'upper $20's.' This resume came to the attention of defendant Robert A. Levitt, then administrative officer and labor counsel at Western Electric, who arranged to interview Molinar at the Parker House in Boston in October 1966.

The meeting opened with an inquiry by Levitt into Molinar's work at Raytheon. As Molinar testified,

'I told him that I was responsible for all the labor affairs of Raytheon Company, which included (sic) handling arbitration cases, which included arguing cases before the Court of Appeals, specifically the Court of Appeals for the First Circuit on cases that had been appealed from the National Labor Relations Board. I told him that I had legal responsibility for all affairs that the company might have, legal affairs, that the company might have with labor unions or even corporate executives. Quite often I would have to draft agreements for executives who were being employed at Raytheon, and that I was responsible for giving legal advice on the pension plan that Raytheon had, how it applied with the bargain unit people and how it applied to other people; that I had the full responsibility for all affairs involving the corporation of some 40,000 employees with labor unions and with their people in general.'

Levitt then turned to the opening at Western Electric. He said he was authorized to hire someone qualified to take over his own responsibilities, because, Molinar testified,

'in all probability he was going to be promoted or he was going to go into a professor-ship; he was going to leave within a reasonable short time, which he--I said, well, what is a reasonable short time and he said in all probability a year . . ..'

Molinar asked what would happen if Levitt did not leave as expected. Observing that Western Electric had some 200,000 employees as compared with Raytheon's 40,000, Levitt responded that 'what occurs then is that you will be given the same duties that you now have at Raytheon.' He added, however (as Molinar conceded on cross-examination), that he was 'an exacting supervisor in that he required capable and conscientious people in his group.' Molinar stated that he needed a minimum of $28,000.00. The meeting ended with the following discussion of job permanency, as described in Molinar's testimony:

'I told Mr. Levitt that I had secure employment at Raytheon Company, and I would not accept employment except for that sort of position with some sort of guarantee of permanency, and he said it was Western Electric's policy not to terminate any employee except for just and specific cause and pursuant to a fair hearing.'

Both men left the meeting agreeing to 'think about it.'

Levitt and Molinar met for a second time on December 19, 1966, when Molinar came to Western Electric's New York offices to speak with Levitt and Levitt's superior, Stephen Fletcher, vice president and general counsel at Western Electric. At a conversation in Fletcher's office, Molinar reiterated his interest in $28,000.00 and his satisfaction with 'the company policy' on job security that Levitt had described to him in October. He told Fletcher, "I certainly would be very pleased if I were offered the position to be an assistant to Mr. Levitt, exercising the full responsibilities that he told me I would exercise and under the basis of the company policy." Fletcher at this point elaborated on the subject of company policy:

'Mr. Fletcher told me that there was a company policy to the effect that it they hired someone at that level, company policy called for No. 1, him to obtain the approval of the president of the company, which the hadn't yet obtained and, therefore, he couldn't offer me the job at that moment; and No. 2, that if there was any termination of that employment it would also have to be with the approval of the president of the company.'

At the end of this conversation, Molinar was asked to wait while Levitt and Fletcher conferred in Fletcher's office. Then Levitt and Molinar went to Levitt's office where the discussion of terms continued. The $28,000.00 figure came up again, and there was more talk of the duties and security of the job:

'The discussion was, I assume if you are offering me this job it's on the same basis that you discussed, that we discussed in October, mainly that I would not be, in case something didn't work out, I would not be terminated except for just and proper cause and pursuant to a hearing, and we also discussed the duties of the job involved.

. . . The discussion was that I would exercise the same responsibilities in terms of handling arbitration case N.L.R.B. matters, all labor affairs, all personnel matters under only minimum supervision, that I would have a job that gave creativity to a lawyer. . . .'

At this point Levitt handed Molinar a written job description, saying, "This is the job we are offering to you." The description read as follows:

'POSITION CLASSIFICATION

ATTORNEY--LEVEL G

The incumbent in this position has primary legal responsibility for an important phase of the Company's operations. He may supervise the work of one or more Attorneys.

He may be called upon to advise any level of management concerning problems in his area of legal responsibility or he may be assigned as principal Attorney (or counsel) to a division of the Company.

Attorneys in this category are distinguished by being assigned to tours of duty of the most complex and consequential nature, requiring both the highest degree of specialized knowledge and mastery of broad legal or patent theories and concepts and the creative thinking associated therewith.'

Molinar replied that he needed more time to think it over. He returned to Massachusetts and about a week later called Levitt to accept the job:

'I was in Lexington and I called him in New York and told him that I would accept the proposition and would report to work on the basis of all the terms and conditions that we had discussed and he said, 'Very good.' He said, 'We are really happy that you made that decision."

Molinar went to work at Western Electric on January 23, 1967, at the agreed salary of $28,000.00. At his new job, he testified, he 'wrote legal memorandums, principally.' In addition,

'I handled two arbitration cases for Western Electric in North Carolina. I handled an N.L.R.B. case, National Labor Relations Board Case, for Western Electric in the preliminary stages. I wrote analyses of legal problems that occurred in the office of labor counsel, which was again primarily legal research. I answered the phone calls from several assistant managers of labor relations for Western Electric, who might have day to day problems from different plants that Western Electric had, and these problems might have legal implications and they would call me and ask me what they should do on that situation. That was basically what my duties were.'

Dissatisfied with these responsibilities and with the extent of Levitt's supervision, Molinar complained to Levitt on four or five occasions that Levitt was not living up to his promises.

Finally, on November 3, 1967, after less than ten months on the job, Molinar was called into Levitt's office. Levitt explained that things were 'not working out,' that Molinar was 'not sufficiently dedicated and applied to the job,' and that as far as Levitt was concerned Molinar was 'through.' Molinar asked for some time to seek other employment, and Levitt agreed to give him 'a maximum of six months.' April 15, 1968, was later set as the time for departure.

Between November 3, 1967, and April 15, 1968, Molinar spent much of his time looking for employment elsewhere. However, he continued to work at Western Electric, performing 'special assignments,' including preparation of legal memoranda, and continued to receive his full salary.

On March 10, 1968, unsuccessful in his search for another job, Molinar wrote to Fletcher to ask reconsideration of his termination and...

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