Morrissey v. Boston Five Cents Sav. Bank

• Decision Date: 06 April 1995
• Docket Number: No. 94-2220,94-2220
• Citation: 54 F.3d 27
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1338, 66 Empl. Prac. Dec. P 43,547, 19 Employee Benefits Cas. 1305 William P. MORRISSEY, Plaintiff, Appellant, v. The BOSTON FIVE CENTS SAVINGS BANK, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 27

54 F.3d 27

67 Fair Empl.Prac.Cas. (BNA) 1338,

66 Empl. Prac. Dec. P 43,547,

19 Employee Benefits Cas. 1305

William P. MORRISSEY, Plaintiff, Appellant, v. The BOSTON FIVE CENTS SAVINGS BANK, et al., Defendants, Appellees.

No. 94-2220.

United States Court of Appeals First Circuit.

Heard April 6, 1995.

Decided May 15, 1995.

Robert H. Quinn, with whom John J. Morrissey and Quinn & Morris, Boston, MA, were on brief, for appellant.

Robert B. Gordon, with whom David M. Mandel and Ropes & Gray, Boston, MA, were on brief, for appellees.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff-appellant William Morrissey, a twenty-year employee of defendant-appellee Boston Five Cents Savings Bank, F.S.B. ("the Bank"), was involuntarily retired from his position as Executive Vice President for Corporate Affairs on November 1, 1992, approximately one month after his sixty-fifth birthday, and approximately one week after he filed age discrimination claims against the Bank and its holding company, the Boston Five Bancorp, with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission.

It is undisputed that the Bank forced Morrissey to retire because of his age. The question before us is whether the Bank's action was lawful under a narrow exemption to the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-34 ("ADEA"), which permits compulsory retirement, at age sixty-five and older, of certain employees who occupy "bona fide executive" or "high policymaking" positions for the two-year period immediately preceding retirement, if such employees are entitled upon retirement to an immediate nonforfeitable annual retirement benefit of at least $44,000. See 29 U.S.C. Sec. 631(c)(1). We answer this question in the affirmative, and therefore affirm the district court's order granting summary judgment in favor of the Bank.

I. Background

On appeal from a grant of summary judgment, we view the facts and all inferences that may fairly be drawn from them in the light most favorable to the nonmoving party. Coll v. PB Diagnostic Systems, Inc., 50 F.3d 1115, 1121 (1st Cir.1995).

The Bank hired Morrissey as a Vice President in June of 1972, and later promoted him to the position of Senior Vice President. In 1978 or 1979, the Bank's then Chief Executive Officer ("CEO"), Robert Spiller, promoted Morrissey to Executive Vice President for Corporate Affairs. Morrissey continued to hold this position until the Bank forced him to retire, at which time he was the fifth highest paid employee at the Bank.

In his capacity as Executive Vice President for Corporate Affairs, Morrissey reported directly to the CEO and was responsible for (i) monitoring state and federal regulations and advising the Bank with respect to the influence and effect of these regulations upon the business of the Bank, and recommending action where appropriate; (ii) developing and recommending merger and acquisition candidates; and (iii) developing sources of loan and deposit business for the Bank. In addition to these duties, Morrissey served as a member of the Asset and Liability Committee, and regularly attended the meetings of the Board of Directors. He also attended the weekly meetings of the Bank's six most senior officers ("Senior Officers Group").

In 1990, Robert Spiller retired and defendant Peter Blampied succeeded him as CEO. The Bank does not contest Morrissey's assertion that this event took place shortly before the statutory two-year period immediately prior to his involuntary retirement. By Morrissey's account, his role in the formulation of Bank policy was greatly diminished after Blampied took over as CEO. Morrissey contends, for example, that whereas under former CEO Spiller, the weekly meeting of the Senior Officers Group served as an opportunity for the officers to discuss and to participate in policymaking decisions, under CEO Blampied, this meeting ceased to serve the same policymaking function. Instead, all high policy decisions were made by the Board of Directors, or by a subset of senior officers that did not include Morrissey, which specifically excluded him from high policy discussions of important issues such as the Bank's distressed real estate holdings, its dealings with regulators, and its three-year strategic business plan. Morrissey also asserts that Blampied did not specifically solicit policy recommendations from him, and that, at his deposition, Blampied could recall specific comments by Morrissey with respect to only one policy matter.

On July 28, 1992, Blampied advised Morrissey that, in view of the fact that his sixty-fifth birthday was approaching, he should be thinking about retiring. Morrissey replied that he had no intention of retiring and that he could not afford to retire because he had to provide for his young family. Morrissey turned sixty-five on September 29, 1992. On October 6, 1992, Blampied again told Morrissey that, because he was sixty-five, he should be thinking of retiring. Blampied also suggested the possibility of a year-to-year paid consulting arrangement. The following day, Morrissey received a memorandum outlining this arrangement, to which he responded later in the day. Morrissey told Blampied that he had not agreed to the proposed arrangement and asked whether Blampied had consulted with any attorneys on the matter. Blampied replied that he had "checked every base," that he was going to "play hardball," and that the proposed consulting arrangement was rescinded. At some point during this meeting, Morrissey asked for the opportunity to review the matter with attorneys and other consultants.

On October 13, 1992, Morrissey received written notification that his retirement would be effective November 1, 1992. At the time of this notification, Morrissey was entitled to receive $38,352 annually in nonforfeitable pension benefits under his Qualified Benefit Plan ("QBP"), plus $17,592 annually in pension benefits under his Executive Supplemental Benefits Plan ("SERP"). The SERP benefits were forfeitable upon certain conditions specified in the contract. On October 26, 1992, Morrissey filed state and federal age discrimination claims with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunity Commission. By his account, Morrissey gave the Bank written notice of these claims on his October 28, 1992 application for pension benefits.

On October 29, 1992, the Executive Committee of the Board of Directors held a special meeting via telephone conference, during which the Committee voted to waive irrevocably the forfeitability conditions of Morrissey's SERP as to $6,000 of the annual pension benefit to which he was entitled under that plan, as of November 1, 1992. The effect of the Committee's vote was to increase the total amount of Morrissey's nonforfeitable annual pension benefit from the $38,352 to which he was entitled under his QBP, to slightly more than the $44,000 minimum required under the ADEA exemption. Morrissey was informed of the increase in the amount of his nonforfeitable pension benefit on October 30, 1992. On November 1, 1992, he was forced to retire.

On August 20, 1993 (after having been granted permission to withdraw his administrative claims), Morrissey filed suit in the Massachusetts Superior Court against the Bank, the Boston Five Bancorp, the individual members of the Executive Committee, and the administrators of the Bank's pension benefits plan. ¹ The complaint alleged age discrimination and retaliation in violation of the ADEA, the Massachusetts Unlawful Discrimination Act, Gen.L. ch. 151B Sec. 4, and the Massachusetts Equal Rights Under Law Act, Gen.L. ch. 93 Secs. 102 and 103. ² The Bank removed the case to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. Sec. 1441, and subsequently filed a motion for summary judgment on all claims, which the district court granted.

II. Standard of Review

On appeal, we review a grant of summary judgment de novo, evaluating the record in the light most favorable to the party opposing the motion, and drawing all reasonable inferences in that party's favor. Coll, at 1121. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

"By its very terms, this standard provides that the 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, 2510, 91 L.Ed.2d 202 (1986). Material facts are those "that might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. at 2510. See also Coll, at 1121. A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (internal citations omitted).

III. Discussion

Morrissey raises three issues on appeal. First, he argues that during the last two years of his employment with the Bank, he was not, in fact, a high policymaker within the meaning of the ADEA exemption, and that the district court erred by failing to apply a functional test to determine his status. Second, he contends that the district court erred in interpreting the pension benefit prong of the exemption so as to permit an employer to increase the amount of an employee's nonforfeitable pension benefit after the alleged act of...