Rand v. CF Industries, Inc.

• Decision Date: 23 December 1994
• Docket Number: No. 94-1126,94-1126
• Citation: 42 F.3d 1139
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 1114, 65 Empl. Prac. Dec. P 43,407 Joseph L. RAND, Plaintiff-Appellant, v. CF INDUSTRIES, INCORPORATED, and Robert C. Liuzzi, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1139

42 F.3d 1139

66 Fair Empl.Prac.Cas. (BNA) 1114,

65 Empl. Prac. Dec. P 43,407

Joseph L. RAND, Plaintiff-Appellant, v. CF INDUSTRIES, INCORPORATED, and Robert C. Liuzzi Defendants-Appellees.

No. 94-1126.

United States Court of Appeals Seventh Circuit.

Argued Sept. 8, 1994.

Decided Dec. 23, 1994.

Joshua G. Vincent (argued), William J. Holloway, Robert H. Smeltzer, Hinshaw & Culbertson, Chicago, IL, for plaintiff-appellant.

Michael W. Coffield (argued), Frank E. Pasquesi, Gwen V. Carroll, Coffield, Ungaretti & Harris, Chicago, IL, for defendants-appellees.

Before WELLFORD, ^* MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

In late 1988, Richard C. Liuzzi, the president of CF Industries, hired Joseph L. Rand to serve as that corporation's Assistant General Counsel and Assistant Secretary. Rand, then age 47, began work in January, 1989. Less than two years later Liuzzi fired Rand, allegedly because certain executives and employees were dissatisfied with Rand's conduct. Rand filed suit against Liuzzi and CF Industries alleging, inter alia, age discrimination. At the close of discovery, the district court granted summary judgment for Liuzzi and CF Industries. Rand appeals the summary judgment on his age discrimination claim. We affirm the district court.

I. Facts

In the spring of 1988, Joseph L. Rand contacted Robert C. Liuzzi, President of CF Industries, Incorporated ("CFI"), to determine whether there was a position available at CFI. ¹ Liuzzi expressed interest in Rand's application, and called Rand to arrange an interview. On June 17, 1988, Rand visited CFI where he was interviewed by Liuzzi and Clarence E. Lynn, the Vice President for Human Resources. Sometime during their meeting Liuzzi told Rand that for all practical purposes he was hired. Nonetheless, Liuzzi asked Rand to interview with other CFI executives. Rand subsequently interviewed with Paul R. Obert, CFI's General Counsel, and several other CFI executives.

Not surprisingly, the retirement plans of Obert, CFI's General Counsel, were discussed several times during the interview process. Liuzzi told Rand that when Obert retired Rand would become CFI's General Counsel. Liuzzi also said that Obert would probably stay at CFI for only a year or so, and that under no circumstances would Obert be allowed to stay after age 65, CFI's mandatory retirement age. But when Rand met with Obert for an interview over dinner, he got a different prognosis. Obert told Rand that he had an impending dispute with CFI over his retirement, and that CFI might try to force him to retire. According to Rand's notes, Obert said that he needed to stay on for another four to seven years for financial reasons, and that federal law prohibited CFI from forcing him out at age 65.

In any event, Liuzzi offered Rand a position as CFI's Assistant General Counsel and Assistant Secretary. Rand accepted the offer, and his acceptance was greeted with enthusiasm by CFI's executives--with one notable exception, Dick Roberg. Roberg's reaction is not surprising, because although he was CFI's current Assistant Counsel Liuzzi had recently told him that he would never become General Counsel, and that he should begin looking for another job. According to Rand's notes, Obert told Rand he should expect a "less-than-warm welcome" from Roberg. Obert also told Rand that Roberg was a good lawyer, but had terrible interpersonal skills, and had alienated all but a few of CFI's officers. Obert predicted that Liuzzi would fire Roberg during the first quarter of 1989. As it happened, Roberg did not last that long. Liuzzi fired him shortly after Rand accepted CFI's offer in November of 1988.

Rand began work on January 4, 1989. In connection with his employment he was given an employee manual. The manual states that CFI is committed to a continuous appraisal policy whereby employee performance should be documented and communicated to CFI's employees on a regular basis. The manual also states that CFI employees are subject to at-will employment. The testimony of CFI executives indicates that, as a general matter, CFI adheres to its continuous appraisal policy.

Rand's first year at CFI went well, and this was reflected in his performance review. Obert rated Rand's performance as superior, gave him a $27,500 bonus and the maximum salary increase. In a section dealing with promotability, however, Obert stated that he did not plan to retire for another 5 years and 8 months.

As it happened, Rand had his first bad experience at CFI shortly after Obert prepared this 1990 review. The wrong turn of events occurred when Liuzzi asked Rand to draft a letter of intent concerning a possible purchase of assets. Liuzzi also asked Rand to oversee related tasks, including a search of records at the Securities and Exchange Commission which was supervised by Rosemary O'Brien. Rand angered both O'Brien and Liuzzi as a result of his work on this project. Later, O'Brien told Liuzzi that Rand had harassed her by repeatedly demanding documents; had second-guessed her judgment as to the appropriate search methodology; and had embarrassed her during a telephone conference with retained counsel. Liuzzi became angry because Rand failed to provide revised drafts with sufficient dispatch and failed to provide red-lined copies. At one point Liuzzi warned Rand that unless he received a satisfactory document, there were going to be personnel changes.

Shortly after these negative exchanges, Obert met with Rand to discuss his review. ² Obert told Rand that, practically speaking, he had received the highest grade, bonus, and raise possible. He also told Rand that CFI was very pleased with his performance. Rand must have expressed surprise about his bonus given Liuzzi's recent outburst, because he recorded Obert's thought that Liuzzi approved the bonus before the recent "fiasco." ³ During this meeting Obert restated his intent to defer retirement for another five and a half years. According to Rand, at this meeting Obert expressed much more forcefully than before his determination to stay on at CFI. Of course, this would delay Rand's promotion.

Rand's relationship with CFI deteriorated rapidly after January of 1990, and there can be no doubt that Obert's retirement plans played some part in this process. In June, for example, Rand asked Lynn to help him obtain a company car even though only the General Counsel received a company car under CFI's policy. According to Rand's notes, he told Lynn that this perquisite took on greater importance after Obert reiterated his intent to defer retirement for another five years. When Lynn reminded Rand that he knew Obert's retirement plans when he took the job, Rand replied that Obert's prolonged stay had seemed like a mere possibility then, but looked like a real probability now. Hence this second request, which Lynn again declined.

Whatever the case, Obert stated that Rand became confrontational after his review, and Obert became dissatisfied as a result. ⁴ Rand's notes and other documents evidence this tension, which surfaced in the treatment of fairly petty matters. For example, Obert became angry because Rand reserved the days around Christmas for vacation without considering Obert's plans, and left work early or took days off from work for personal reasons. On several other occasions, Obert became angry because Rand took or authorized legal action without seeking Obert's approval. Rand was aware of this mounting tension, because when Obert sent him a pointed memo addressing his absence during working hours, Rand noted that Obert's response seemed unduly harsh, and seemed to intimate some more serious grievance.

Meanwhile, Rand's earlier difficulties with O'Brien came back to haunt him when, in March or April of 1990, Liuzzi, while complimenting the good teamwork and lack of back-biting among CFI executives, prompted O'Brien to complain about Rand. O'Brien's complaint spurred Liuzzi to begin an informal survey of other CFI executives. Sometime in June, Liuzzi questioned Lynn who told him that some people at CFI were finding Rand's personality intolerable. Lynn's comments prompted Liuzzi to ask for details, and to continue to seek out the opinion of other executives through the fall of 1990.

Ultimately several CFI executives told Liuzzi that they were not pleased with Rand. John H. Sultenfuss, CFI's Vice President for Marketing and Sales, told Lynn that he and people in his department were having a hard time working with Rand, thought Rand wasted their time, and, as a result, had stopped seeking Rand's advice. One member of Sultenfuss's department, Ray Poponyak, thought Rand was arrogant and insulting to both co-workers and clients, and stated that Rand had failed to provide him with legal advice. Later Liuzzi spoke with Sultenfuss and Harry Leonelli who reiterated these grievances.

By this time it was the fall of 1990, and Liuzzi called O'Brien again for the specific purpose of learning her opinion about Rand's conduct in general. During this conversation, O'Brien told Liuzzi that Rand had offended her again since they had last spoken. O'Brien related how Rand had humiliated and embarrassed her at several lunch meetings with clients, other industry representatives, or other CFI executives.

At this point, Liuzzi decided to fire Rand. There is no need to belabor the point: several CFI executives told Liuzzi that Rand was overbearing, tactless, and arrogant. As a result, they were unwilling to seek his counsel. According to Liuzzi the damage caused by Rand's conduct was irreparable, because he could neither order Rand to become less offensive, nor order other CFI executives to seek Rand's counsel. Significantly, Liuzzi never spoke directly with Obert, who was also displeased with Rand. When Obert returned to the office from a few days of sick leave, Liuzzi informed him that Rand would be fired, apologized for not consulting him in advance, and told him that the decision...