Stetson v. NYNEX Service Co.
| Decision Date | 26 May 1993 |
| Docket Number | No. 1161,N,1161 |
| Citation | 995 F.2d 355 |
| Parties | 62 Fair Empl.Prac.Cas. (BNA) 119, 61 Empl. Prac. Dec. P 42,280, 16 Employee Benefits Cas. 2677 John C. STETSON, Plaintiff-Appellant, v. NYNEX SERVICE COMPANY and NYNEX Corporation, Defendants-Appellees. o. 92-9165. |
| Court | U.S. Court of Appeals — Second Circuit |
David L. Sohn, Huntington, NY, for plaintiff-appellant.
Stuart H. Bompey, New York City (Jill L. Rosenberg, Orrick, Herrington & Sutcliffe, New York City, Bernard Yaker, White Plains, NY, on the brief), for defendants-appellees.
Before: KEARSE and WINTER, Circuit Judges, and CARMAN, Judge *.
Plaintiff John C. Stetson appeals from a judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, dismissing his action against defendants NYNEX Service Company ("NSC") and NYNEX Corporation ("NYNEX") 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 the circumstances surrounding Stetson's alleged discharge were insufficient to warrant an inference of age discrimination. On appeal, Stetson contends that there were genuine issues of fact to be tried as to defendants' alleged discriminatory motive. For the reasons below, we agree with the district court that there was no proof of age discrimination, but we affirm principally on the ground that there was no proof of constructive discharge
NSC was a centralized support company owned by two NYNEX subsidiaries including New York Telephone ("Telco"). Stetson was employed by Telco for some 20 years beginning in 1966. In 1986, he went to work for NSC, where he remained until he formally elected to take early retirement effective in May 1990. The following description consists largely of facts admitted by Stetson in connection with defendants' motion for summary judgment.
In 1986, Stetson, then 53 years old, spoke to his contemporary and longtime friend Raymond Burke, who was NYNEX's Executive Vice President and General Counsel, about the availability of legal positions in NYNEX subsidiaries other than Telco. Burke arranged an interview for Stetson with Saul Fisher, Vice President, Secretary, and General Counsel of NSC, and Fisher hired Stetson as a "fourth-level attorney" to handle general legal issues. Prior to taking that position, Stetson was aware that Fisher had a reputation for being a "taskmaster," and that "nobody wanted to be a Service Company lawyer."
During 1986 and part of 1987, Stetson's performance with NSC was apparently satisfactory. For his 1986 performance, he received a $2,300 salary increase, raising his base salary to $93,000, plus a "Team Award" of $10,200, and an "Exceptional Merit Award" of $3,000.
In the summer of 1987, however, Fisher received complaints from attorneys at Telco with regard to the quality of certain contracts that Stetson had reviewed or prepared. The complaint was that important provisions were imprecise, ambiguous, and at times unintelligible; Fisher reviewed the contracts himself and agreed that some terms were not clearly defined and that key provisions were imprecise or poorly drafted. He assigned the legal work on these contracts to another attorney.
Stetson disputed these evaluations and thought the work should not be reassigned. He came to view this dispute as the start of the deterioration of his working relationship with Fisher. By the fall of 1987, Stetson had decided that he wanted to leave NSC and find employment at another NYNEX company. Fisher's review of Stetson's overall 1987 performance led him to grant Stetson a salary increase of $1,200 and a Team Award of $16,200, but no Exceptional Merit Award.
Stetson also received feedback from Fisher at weekly staff meetings, during which each of the attorneys would report on significant matters they were handling. Fisher would ask questions, make suggestions, and sometimes give critical feedback. All of the attenders were subject to this process and had their work critiqued from time to time. Stetson felt that in late 1988 into 1989, Fisher was unduly critical of Stetson's work.
In his semi-annual personnel review in October 1988, Stetson told Fisher he was unhappy with the work he was doing and wanted more substantial projects to supplement his day-to-day assignments. Thereafter, Fisher suggested that Stetson begin to attend the bi-weekly staff meetings of Mary McDermott. McDermott, hired as a fourth-level attorney in late 1987 and promoted to the fifth-level position of "general attorney" in 1988, handled regulatory and marketing work. Stetson attended her meetings but did not volunteer for any of her work.
In February 1989, Fisher reviewed Stetson's 1988 work performance and advised Stetson that his work was sloppy and not thorough. Fisher was also critical of Stetson's failure to keep him informed of work Stetson was performing. Fisher decided that Stetson would receive a Team Award of $15,400, but no increase in his base salary and no Exceptional Merit Award.
During the first seven months of 1989, Fisher assigned various projects to Stetson. Fisher viewed these projects as important; Stetson did not. From August 1989 until December 1989, nonmanagement employees of NYNEX engaged in a strike; most management-level employees, including Stetson, had special strike-duty assignments that took them out of their usual offices. Stetson had an assignment on Long Island, and during that time he had little or no contact with Fisher. From December 1989 until his annual performance review in March 1990, Stetson did not ask either Fisher or McDermott for any assignments.
In late December 1989, NYNEX announced to the employees in its various companies a voluntary Special Retirement Incentive ("SRI") program for management-level employees who were eligible for pensions. Approximately 11,000 employees were eligible to participate in the program, which would enable them to retire voluntarily between January 1 and May 31, 1990, with enhanced pension benefits.
On January 12, 1990, Stetson went to see Burke, stating that he was unhappy with Fisher and seeking Burke's advice and assistance. Stetson expected that because Burke was a friend he would get Stetson another job in a NYNEX company. In March 1989, however, NYNEX had established a formal transfer process for filling attorney vacancies in the legal departments of its various units. At this January 1990 meeting, Burke refused to get Stetson a new job. Burke said Stetson had three options: continue to work at NSC, use the formal transfer process to seek a job in another NYNEX unit, or apply for early retirement under the SRI. According to Stetson, Burke said,
Other than the January 12, 1990 discussion, Stetson never discussed retirement with Burke. Nor did Stetson at any time discuss the issue of retirement or the SRI with Fisher. At no time during Stetson's employment did Fisher ever threaten, either expressly or impliedly, that Stetson's employment would be terminated. On March 21, 1990, Stetson submitted his application for early retirement under the SRI.
At his 1990 annual review, which defendants place on March 22 but Stetson says occurred earlier, Fisher criticized Stetson's work on a number of projects and informed Stetson that he would receive no increase in his base salary. However, in view of Stetson's strike-duty performance, he awarded Stetson a Team Award of $12,900 and an Exceptional Merit Award of $2,000. During this meeting, Stetson told Fisher he was unhappy with the type of work he was doing and thought he could not do anything to please Fisher. Fisher told Stetson to report instead to McDermott, with whom Stetson had never had any problems. This did not entail any reduction of Stetson's salary or grade level.
During this meeting, Stetson did not disclose his intention to take early retirement within a few months. After Fisher learned of Stetson's March 21 application, he sent Stetson a letter dated May 24, 1990, inviting Stetson to rescind his retirement decision and remain with NSC. Burke, by letter dated May 21, had likewise advised Stetson that he was free to remain employed by NSC. Stetson informed Fisher that he was not interested. He retired effective May 31.
In August 1990, Stetson commenced the present action, alleging that his early retirement decision was not voluntary but rather was a response to intolerable working conditions. He asserted that NYNEX and NSC executives had been pressured to force employees to participate in the early retirement plan, and that Fisher and Burke imposed the intolerable working conditions on him solely because of his age and with the intent of forcing him to retire. He alleged that his retirement was thus the result of a constructive discharge in violation of the ADEA and New York's Human Rights Law ("HRL"), N.Y.Exec.Law §§ 290-301 (McKinney 1993).
After more than a year of discovery, defendants moved for summary judgment on the grounds that there was no evidence of a discharge and no evidence of any age-discriminatory ingredient in their treatment of Stetson. In connection with this motion, Stetson conceded that though he was aware that NSC had an internal complaint procedure In a Memorandum Opinion and Order dated September 29, 1992, 1992 WL 276574, ("District Court Opinion"), the district court granted the motion only on the ground of lack of evidence of age discrimination. Though the court noted that "[n]owhere does plaintiff allege that he was threatened with termination if he did not accept early retirement, or that there would be any retaliation if he did not accept early retirement," District Court Opinion at 11, it declined to conclude that there had been no constructive...
To continue reading
Request your trial
-
Martin v. Cavalier Hotel Corp.
...of whether a "reasonable person" in the employee's position would have felt compelled to resign. See, e.g., Stetson v. NYNEX Service Co., 995 F.2d 355, 360-61 (2d Cir.1993) (ADEA claim); Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987) (Title VII racial discrimination claim);......
-
Brown v. Middaugh
...Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985)). See also Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993) (plaintiffs claim under NYHRL "is governed by the same standards as his federal claim"). By examining his Title VII claims......
-
In re Leslie Fay Companies, Inc.
...to management decisions, combined with conclusory allegations of harassment, do not show constructive discharge); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-61 (2d Cir.1993); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983) (employee was not constructively discharged where sh......
-
Marks v. National Communications Ass'n, Inc.
...quit. See Castaldo v. New York City Board of Educ., 166 F.3d 1199, 1998 WL 777038, at *1 (2nd Cir. Oct.27, 1998); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir.1993). For one thing, no one at NCA ever suggested to Marks that she quit. See, e.g., Lopez, 831 F.2d at 1186. Rather, Chas......
-
Theories of liability
...Rental Corp ., 85 F.3d 1074 (3rd Cir. 1996); Schnidrig v. Columbia Machine , 80 F.3d 1406 (9th Cir. 1996); Stetson v. NYNEX Service Co ., 995 F.2d 355 (2nd Cir. 1993). In a minority of jurisdictions, the plainti൵ must show that the defendant deliberately intended to force him to resign. For......
-
Initiating litigation and finalizing the pleadings
...found the working conditions so intolerable that he or she would have been compelled to resign. See, e.g., Stetson v. NYNEX Service Co. , 995 F.2d 355 (2d Cir. 1993); Cherry v. Menard, Inc. , 101 F.Supp. 2d 1160 (N.D. Iowa, 2000); Prichard v. Ledford , 767 F.Supp. 1425 (E.D. Tenn. 1990).) •......