Spence v. Maryland Cas. Co.

• Citation: 995 F.2d 1147
• Decision Date: 26 May 1993
• Docket Number: D,No. 1372,1372
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 151, 61 Empl. Prac. Dec. P 42,277 Erwin J. SPENCE, Jr., Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, American General Corporation, Thomas K. Fitzsimmons, and William B. Loden, Defendants-Appellees. ocket 92-9052.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1147

995 F.2d 1147

62 Fair Empl.Prac.Cas. (BNA) 151,

61 Empl. Prac. Dec. P 42,277

Erwin J. SPENCE, Jr., Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, American General Corporation Thomas K. Fitzsimmons, and William B. Loden Defendants-Appellees.

No. 1372, Docket 92-9052.

United States Court of Appeals Second Circuit.

Argued April 23, 1993.

Decided May 26, 1993.

Christopher A. Spence, Buffalo, NY (Magner, Love & Morris, on the brief), for plaintiff-appellant.

Thomas S. Gill, Buffalo, NY (Saperston & Day, on the brief), for defendants-appellees.

Before: KEARSE and ALTIMARI, Circuit Judges, and CARTER, District Judge ^*.

KEARSE, Circuit Judge:

Plaintiff Erwin J. ("Jack") Spence, Jr., appeals from a judgment entered in the United States District Court for the Western District of New York, William M. Skretny, Judge, dismissing his complaint against defendants Maryland Casualty Co. ("Maryland Casualty" or the "Company") et al., seeking monetary relief principally for an alleged constructive discharge in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1988), and state law. The district court granted defendants' motion for summary judgment on the ground that Spence had failed to meet his burden of establishing by a preponderance of the evidence that defendants' reasons for

                their actions toward him were merely a pretext for age discrimination.   On appeal, Spence contends principally that the existence of genuine issues of fact as to defendants' motivation precluded summary judgment and that the district court erred in denying certain discovery requests.   For the reasons below, we affirm the judgment principally on the ground that there was no proof of constructive discharge
                

I. BACKGROUND

Maryland Casualty is an insurance company headquartered in Baltimore, Maryland. Spence began working at Maryland Casualty upon his graduation from college in 1950 and, with one interruption, continued to work there for more than 35 years. Most of the description that follows is taken from Spence's own account of the events and his reactions to them, as recited in deposition testimony and in an affidavit filed in this action.

A. The Events

In 1977, Spence became manager of the Company's Buffalo, New York branch. He apparently had no difficulty in that position before 1987, succeeding in increasing the volume of premiums received by that office from $5 million in 1977 to $39 million by the end of 1987. In 1987, the Company's profit goal for the Buffalo branch was approximately $1.5 million; under Spence's management, the office produced profits of more than $3.5 million.

In 1985, defendant William B. ("Rick") Loden, a Maryland Casualty vice president, became supervisor of branch managers for the Company's Mid-Atlantic region. He reported to defendant Thomas K. Fitzsimmons, who was then vice president for that region. In early 1987, Spence, then 58 years old, began to receive criticism of his management of the Buffalo branch from Loden, apparently with the concurrence of Fitzsimmons. In the spring of 1987, Loden conducted a review of the Buffalo branch and was displeased both with the reports he received and with the manner in which branch staff members had prepared themselves for the review. Loden told Spence he held Spence responsible for the poor performance of the staff. Though Loden had changed the format for these reviews unbeknownst to Spence, he blamed Spence for not having learned of the change. Spence learned that other branches had been similarly criticized.

In June 1987, Loden visited the Buffalo office, accompanied by another Maryland Casualty executive. At their meeting, Loden harangued Spence and his staff, and the other executive pounded his fist on the table. The gist of their complaints was

you're always recommending things that we can't do, why don't you try to do something else? Why don't you come up with some other suggestions and why don't you follow through on certain other things

....

(Deposition of Erwin J. Spence, Jr. ("Spence Dep."), July 7, 1989, at 40.) Spence viewed the executives' conduct as intimidating and especially harassing, given the unprofessional pounding on the table. Thereafter, Loden sent Spence a letter outlining problems facing the Buffalo branch and again indicating that Loden was dissatisfied with Spence's performance in directing his staff. Spence regarded this letter as intimidating and threatening.

In July 1987, Loden met with Spence again and criticized his management style as unduly soft. Spence argued that the way in which he had always managed people was to persuade and motivate, rather than to intimidate. Loden was unpersuaded:

... LODEN told me that changes over my 35 year tenure with the company mandated that I change my management style. He told me he wanted me to "kick people in the ass, as I do it". I told him that my management style had been approved by the company for 35 years and I had been successful in motivating my personnel with my own management style. LODEN told me that to continue with the company under him, I must change my management style to become more like his own. He told me that because of my age, he knew it would be difficult for me to conform to his wishes. Nevertheless, that would be required as part of my employment.

(Affidavit of Erwin J. Spence, Jr., dated February 14, 1992 ("Spence Aff."), p 14.) Spence considered Loden's statements to be threatening and intimidating.

In September 1987, Loden sent Spence a letter complaining of an August shortfall in production at the Buffalo branch. Loden blamed Spence's management policies for the shortfall. Spence considered the letter harassing because of its "tone" that implied, "you're in trouble again." (Spence Dep. July 7, 1989, at 63.)

In the fall of 1987, Spence noticed that reports from Company headquarters were slow to reflect certain premiums received by the Buffalo branch. He therefore instructed his administrative manager to send all premium recordings to headquarters by Federal Express. Fitzsimmons criticized him for use of Federal Express. Spence considered this criticism to be intimidating or threatening.

In November 1987, Loden met in Buffalo with Spence and his office managers and told them their performance was unsatisfactory, accusing the participants of blaming each other for the branch's shortcomings. The meeting included a five-minute tirade by Loden, who ranted and cursed and

stated that if he had to come back to Buffalo one more time, that he would remove me as manager and that he will, indeed, remove the entire management staff of the Buffalo office.

(Id. at 72.) Loden said, "I will come up and fire you, Spence, and every other member of your management team that's in this room. Starting with you...." (Id. at 76.) After Loden "left the room in a rage" (Spence Aff. p 23), Spence's managers, shaken by this performance, asked Spence whether they should look for other jobs.

In January 1988, Loden and Fitzsimmons met in Buffalo with Spence and several others. That meeting was followed by a lunch meeting attended only by Loden, Fitzsimmons, and Spence. Loden expressed his displeasure with the performance of Spence's staff, stating that it seemed they were attempting to blame outside factors for the branch's failure to achieve the premium goal set by the Company. Spence then sought to discuss a problem he was having with one of his managers, Richard Dirmyer:

... Loden indicated that he didn't wish to discuss Mr. Dirmyer's--any problem I might have with Mr. Dirmyer at this meeting and that he wanted--what he wanted to discuss was my lack of management of my managers or poor management of my managers.

I indicated to Mr. Loden that Mr. Dirmyer represented a serious challenge and as far as accepting management was a difficult person to manage because--his underwriting technical abilities were far superior to anyone in the office and it was--he--he took direction very--it was very difficult for him to accept direction. And I said he's very difficult to manage, and Mr. Loden stuck his face in my face and said, you are very difficult to manage, that's what we want to discuss is you, and you are very difficult to manage.

And at that point in time, he indicated that--once again, that his level of confidence in me--and Mr. Fitzsimmons joined with him, in that--that their level of confidence in my leadership and level of confidence in the people in Buffalo was no better after the meeting that [sic ] it had been before.

... [I]t was made obvious to me before he departed again, I believe Mr. Fitzsimmons was there at the time, that my job was in jeopardy and that I was not managing in according--according to his wishes and what he wanted, and I took it--I took that to mean that he wanted me to manage the way he managed and I didn't feel that I could do that.

(Spence Dep. July 7, 1989, at 82-83.)

On February 3, 1988, Loden met with Spence in Maryland on the eve of a meeting with all branch managers, and essentially placed Spence on probation. Spence testified that Loden

said that he wanted to discuss my situation with me and he handed me a letter dated February 3rd, 1988 that was several pages in length and to which was attached copies of his letters to me following the agency review in the spring, the June meeting, the November meeting and maybe one other....

* He asked me to read these things because, basically, it would outline what he wanted to tell me.

(Id. at 95-96.) The three-page February 3, 1988 letter gave examples of questions that Loden had asked of Spence's managers, to which he had received widely disparate answers or pleas of ignorance. It also cited certain measures and controls that Spence was supposed to have instituted but apparently had not. The letter stated that another review would be conducted in mid-April and that "[i]f, in my opinion, the situations that I have been talking to you about since April of last...