USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1312
HARVEY R. GREENBERG,
Plaintiff, Appellant,
v.
UNION CAMP CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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____________________
Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Douglas G. Moxham, with whom Geoffrey R. Bok and Lane & Altman,
__________________ _______________ _____________
were on brief for appellant.
John T. Murray, with whom Jeffrey K. Ross, Seyfarth, Shaw,
________________ _________________ ________________
Fairweather & Geraldson, John A. Nadas, Kevin P. Light, Karen L.
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Cartotto, and Choate, Hall & Stewart, were on brief for appellee.
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February 17, 1995
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STAHL, Circuit Judge. Plaintiff-appellant Harvey
STAHL, Circuit Judge.
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Greenberg appeals from a directed verdict granted in favor of
defendant-appellee Union Camp on Greenberg's claims of
wrongful termination due to age and retaliatory
discrimination. Because Greenberg failed to adduce
sufficient evidence to support a finding of constructive
discharge or retaliatory motive, we affirm.
I.
I.
__
Background
Background
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In October of 1971, Harvey Greenberg, at age
thirty-five, began working as a sales representative for
Union Camp.1 Union Camp hired Greenberg primarily to cover
the Maine sales territory for its Dedham, Massachusetts,
plant. Union Camp manufactures (and Greenberg sold)
corrugated cardboard boxes for industrial and commercial use.
Throughout his career at Union Camp, Greenberg resided in
Swampscott, Massachusetts.
When Union Camp hired Greenberg, it had virtually
no existing customer base in the State of Maine. Greenberg
initially spent one week a month prospecting for new accounts
in Maine and the rest of the month selling to existing
____________________
1. In 1971, the entity that retained Greenberg was a
subsidiary of Union Camp operating under the name Allied
Container. About 1985, the Allied Container subsidiary
adopted the Union Camp logo. For purposes of this opinion,
we will refer to Greenberg's employer, whether before or
after 1985, as Union Camp.
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Massachusetts customers. Greenberg, however, successfully
built up Union Camp's client base in Maine and in short order
concentrated his sales efforts almost exclusively in Maine.
Indeed, Greenberg was primarily responsible for securing the
Maine client base which was a prerequisite for Union Camp to
open a corrugated container plant in Auburn, Maine. By 1977,
Union Camp's client base in Maine had grown such that
Greenberg's sales territory was narrowed to approximately the
southern half of the State of Maine.2
Greenberg increased his sales every year, from
$190,000 in 1972 to over $5,400,000 in 1989. Greenberg's
profit contribution (roughly a measure of how much money
Union Camp earned on the sales) consistently compared very
favorably with that of other Union Camp sales
representatives. Moreover, at least by some measures,
Greenberg successfully sold not only to established accounts,
but also to new customers.3 Greenberg received annual pay
increases with his compensation rising from about $12,500 in
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2. By 1977, Greenberg had essentially discontinued calling
on any Massachusetts customers.
3. The parties disputed Greenberg's performance in securing
and selling new accounts. In maintaining that he performed
well in this area, Greenberg pointed out that he ranked
third, second and first for the years 1987, 1988 and 1989,
respectively, in terms of square feet of corrugated cardboard
sold to new accounts. Union Camp, on the other hand, pointed
to other measures, that indicated whether the new-account
customers were one-time purchasers or became recurring
customers, which shed a less favorable light on Greenberg's
performance.
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1972 to almost $65,000 in 1989. In July of 1990, at his
annual performance review, Greenberg, who like all Union Camp
sales representatives worked on a salary rather than a
commission basis, received the largest merit increase of his
career.
Throughout most of his nineteen years at Union
Camp, Greenberg called on his Maine customers only on
Tuesdays, Wednesdays and Thursdays. He attributed this work
schedule, at least in part, to his basic sales philosophy
that prospective customers were generally too busy for and
unreceptive to sales pitches on Mondays and Fridays. During
a typical week, Greenberg would leave his home in
Massachusetts at 5:30 a.m. on Tuesdays, meet his first
customer in Maine at 7:00 a.m. and continue to make sales
calls until around 3:00 p.m., when he would check into a
motel where he would spend Tuesday and Wednesday nights.
Often he would entertain clients on the company expense
account during the evenings. Wednesdays, he typically left
his hotel at 8:00 a.m. and would call on customers until the
middle of the afternoon. On Thursdays starting sometime
after 8:00 a.m., he would visit customers while working his
way back to Massachusetts, generally arriving home sometime
near the middle of the afternoon.
Early in his career, Greenberg reported to the
Dedham, Massachusetts, plant on Mondays to speak to
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4
supervisors, turn in expense reports and meet with box
designers about customer orders. After Greenberg began
reporting to the Maine plant in 1983, he still periodically
went to the Dedham plant to work with designers until the
facility closed around 1986. From 1986 until he left the
company, Greenberg generally worked out of his home on
Mondays and Fridays, completing paperwork4 and making
telephone calls to the plant and to customers. Greenberg
normally finished this work before noon, usually leaving the
rest of the day for personal matters. Greenberg periodically
did visit a New Hampshire customer on Mondays.
In 1987, Union Camp assigned Gerald Redman to the
Auburn, Maine, plant as plant manager. In the summer of 1987
at Greenberg's annual performance review, Redman told
Greenberg that, "[y]our reputation goes all the way to Wayne
[(Union Camp's headquarters)], you don't work Monday and
Friday. If it ever gets to be a problem, I will be the first
to tell you about it." Bob Ritter, the Maine plant sales
manager, testified that, at this meeting and at Greenberg's
1988 performance review, Greenberg stated that he intended to
retire at age fifty-five.
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4. The paperwork consisted of expense and sales-call
reports. Greenberg testified that, for the last several
years of his career, he filled out identical sales-call
reports every other week. He stated that, though in general
they reflected his activities, they did not accurately state
on a day-to-day basis the clients he visited.
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5
In November 1989, Redman and Ritter required
Greenberg and the other sales representatives to make
presentations regarding their top five new-account prospects.
Redman was extremely dissatisfied with Greenberg's
performance at his individual meeting, and Greenberg
described the meeting as "two hours of insults and threats."
At one point during the meeting, Greenberg stated, "I don't
have to listen to this garbage anymore," and threatened to
walk out. At another, Greenberg commented to Redman that
there seemed to be "[a] sword of [D]amocles hanging over my
head in my best sales year." To which Redman responded,
"You'd better believe it." Ritter testified that at this
meeting he told Greenberg that his three-day schedule was not
satisfactory. Though Greenberg maintained that he was not
ordered at this point to make sales calls on Mondays and
Fridays, he admitted that his work schedule may have been
discussed. Following the meeting, Greenberg avoided speaking
with Redman and Ritter except as business required.5
Greenberg asked Ritter to visit some customers with
him in February of 1990. During the trip, the two discussed
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5. Greenberg also testified that his expenses were discussed
during this meeting. He recalled stating "I never pocketed a
nickel." Redman replied, "It better be that way."
At trial, Greenberg admitted that he often entertained
individuals who were not Union Camp customers and later
attributed the cost of the entertainment on his expense
reports to actual clients. Greenberg resolutely maintained,
however, that the expenditures always benefitted Union Camp,
albeit sometimes indirectly.
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6
the previous November meeting. Greenberg testified that they
also discussed Greenberg's own belief that Union Camp's sales
force was too old.6 He also admitted that they may have
discussed his work schedule and sales philosophy, but he did
not specifically recall.
At a meeting in May 1990, Ritter asked Greenberg,
who would turn fifty-four the following July, whether he had
plans to retire early at age fifty-five. Though Greenberg
testified that he had never told anyone at Union Camp that he
intended to retire early, he admitted that a story he often
told about his father might have suggested that he wished to
do so.7 During the meeting, Greenberg told Ritter that
there was no way he could afford to retire early. Directly
following the meeting, Ritter informed Redman that Greenberg
did not intend to retire early. Redman testified that this
fact increased the need to do something about Greenberg's
work schedule.
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6. Greenberg had previously brought this point to both
Redman and Ritter's attention. Deposition testimony of
Greenberg's replacement read into the record at trial
established that, at the time of the deposition, three of
seven sales representatives at the Maine plant were older
than age forty. Though not elicited as a fact in Greenberg's
case-in-chief, Redman, who testified and was present for the
four days of trial, is five years older than Greenberg.
7. Greenberg's written performance reviews dated February
1989 and February 1990, include the statement "Retirement in
the near future," under a section entitled "Career
Development." Greenberg neither signed nor saw these reviews
prior to leaving the company.
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7
In July 1990, Ritter gave Greenberg his annual
review, at which he told Greenberg about his raise, which was
the largest of Greenberg's career, and about areas of his job
performance that needed improvement. Following the meeting,
Ritter sent Greenberg a letter purporting to summarize the
main points of the review. Ritter noted in the letter that
he had informed Greenberg that he must show improvement "in
the immediate future" in areas of "base accounts, new account
development, communication with management, work schedules,
expenses and communication." More specifically, Ritter
wrote:
New account penetration in recent years
has been unsatisfactory. Regardless of
base account level, new account focus,
planning and development must improve.
Work habits and methods must be reviewed
with action taken to better utilize open
available weekly time to achieve job
responsibilities. Not communicating with
management because of the difference of
opinion is unacceptable, and actions such
as these cannot occur again.
Greenberg testified that he could not recall Ritter
counselling him about any significant performance problems in
past reviews.8
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8. Greenberg's unsigned performance reviews from 1987 to
1990 rate him as either an excellent or effective employee.
Areas needing attention or improvement, however, are listed
as "[p]rospecting and attention to detail" (February 1987);
"time in marketplace, tolerance/understanding to differing
opinions" (April 1987); "[a]cknowledgement and adaptability
to changing conditions. Time Management and prospecting"
(February 1989); "[a]cknowledgement & adaptability to
changing conditions. Time management and prospecting."
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8
Greenberg responded with a four-page missive of his
own, dispatched to Ritter and Redman, in which he contested
the substance of Ritter's complaints. Though Greenberg
testified at trial that the fact that he only called on
customers on Tuesdays, Wednesdays and Thursdays was not
discussed at his review, in his letter he specifically
responded: "[`]Work habits and methods [(referring to
Ritter's letter)] . . . .['] We have talked about this
before and my position has never changed. . . . It's been my
experience that successful salesmen have different methods
and if they are successful they should be rewarded [and] not
made to walk to the same beat of some drummer." (Second
ellipsis added).
Redman replied to Greenberg with a short letter
stating:
We received your letter of August
18, 1990, and we would prefer not to
continue a letter writing exchange
regarding your Sales Philosophy.
Bob Ritter's memo of August 8, 1990
was written to document the fact that
your performance has not been up to
expected standards in the areas of:
expenses, expense reporting,
communications, work schedules and new
account penetration. The memo also
intended to emphasize the seriousness of
continued resistance to change and
____________________
(February 1990). The February 1990 review also states,
"Salesman understands consequences of performance level drop
with present inclination not to change work methods & time
management issues presented to him."
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critical opposition to suggestions for
improvement.
After receiving this letter, Greenberg consulted a
lawyer, who, on September 13, 1990, wrote to Redman's
superior suggesting that Greenberg was being subjected to age
discrimination. On September 19, 1990, shortly after Union
Camp received this letter, Redman and Ritter met with
Greenberg and informed him that, from that point on, he was
expressly required to spend five days a week in his sales
territory. Greenberg requested time to consider this
requirement and Redman agreed, telling Greenberg to "`take
time to think about it.'"
Finally, at a meeting nearly a month later on
October 15, 1990, Greenberg refused to sign a letter that
explicitly listed six conditions of employment that he would
be required to meet, including the five-days-in-the-sales-
territory requirement.9 Greenberg's decision not to sign
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9. The six conditions were stated as follows:
1. You must present a plan analyzing
your top 10 new account prospects as to
total dollar potential, how each account
fits our mix and volume profile, our
present sales position with each project,
and an immediate action plan for
penetrating the accounts.
2. Call the Sales Manager or General
Manager every Monday, Wednesday, and
Friday (or on a daily basis whenever
conditions warrant) to communicate
account problems or concerns, review
competitor actions, and update management
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10
the letter ended his employment relationship with Union Camp.
Subsequently, no other sales representative, including
Greenberg's replacement, was required to sign a similar
document. Moreover, Union Camp has never made five days in
the sales territory an explicit job requirement for any other
sales representative.
Greenberg brought this action in the district court
alleging that Union Camp terminated his employment in
violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. 621-634. Greenberg alleged that Union Camp's
actions were motivated by an anti-age animus and a desire to
retaliate against Greenberg for seeking to invoke his ADEA-
protected rights. Following the close of Greenberg's case,
the district court granted Union Camp's motion for a directed
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on market conditions.
3. Provide Sales Manager with written
feedback on customer reaction to
quotations within 30 days of the
quotations being issued.
4. Increase weekly sales calls from
current average of 12-13 to a minimum of
20 per week.
5. Maintain 5 day sales schedule in your
territory and be actively involved in
making customer calls Monday through
Friday.
6. Accurately report expenses incurred
in entertaining customers. Reduce
customer entertainment expenses by 15% in
July through December, 1990 from January
through June, 1990's expenses.
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verdict, holding that Greenberg had failed to show any
evidence of age discrimination and that Union Camp "did not
terminate [Greenberg] but that [Greenberg] left [Union
Camp's] employment because he blatantly refused to work five
days a week in the territory of Maine as required by his
employer." This appeal followed.
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II.
II.
___
Discussion
Discussion
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We review de novo a district court's decision to
__ ____
grant a motion for a directed verdict (or more properly
judgment as a matter of law), employing the "same stringent
standard incumbent upon the trial court in the first
instance." Favorito v. Pannell, 27 F.3d 716, 719 (1st Cir.
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1994). In performing this task, we take the evidence and all
reasonable inferences therefrom in the light most favorable
to the party opposing the motion and ask whether a rational
jury could find in that party's favor. E.g., Murray v. Ross-
____ ______ _____
Dove Co., 5 F.3d 573, 576 (1st Cir. 1993).
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A. Age Discrimination Claim
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In a wrongful termination case under the ADEA, the
plaintiff must establish "`that his years were the
determinative factor in his discharge, that is, that he would
not have been fired but for his age.'" Mesnick v. General
_______ _______
Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991) (quoting Freeman
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v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. 1988)),
_________________
cert. denied, 112 S. Ct. 2965 (1992); see also Vega v. Kodak
_____ ______ ___ ____ ____ _____
Caribbean, Ltd., 3 F.3d 476, 478 (1st Cir. 1993). Where
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direct evidence of discriminatory animus is lacking, the
burden of producing evidence is allocated according to the
now-familiar McDonnell Douglas framework. See McDonnell
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Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Sanchez
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v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).
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Under the McDonnell Douglas framework, the employee
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must initially come forward with sufficient evidence to
establish a prima facie case of discriminatory discharge.
Thus, here, Greenberg needed to establish that (i) he is a
member of a protected class, i.e., over forty years of age,
____
(ii) his job performance was sufficient to meet Union Camp's
legitimate job expectations, (iii) he was actually or
constructively discharged, and (iv) Union Camp sought a
replacement with roughly equivalent qualifications. Vega, 3
____
F.3d at 479; see also Sanchez, 37 F.3d at 719. Once the
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plaintiff has met this relatively light burden, a presumption
of discrimination arises and the onus is then shifted to the
employer to articulate a legitimate, nondiscriminatory reason
for its actions. Mesnick, 950 F.2d at 823. If the employer
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produces such a justification, the presumption of
discrimination vanishes and the burden shifts back to the
plaintiff to show that the employer's alleged justification
is merely pretext for discrimination. Woods v. Friction
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Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994).
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Greenberg's termination claim fails at the outset,
however, because he has not adduced sufficient evidence from
which a jury could reasonably conclude that he was
constructively discharged. Greenberg maintains that Union
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Camp constructively discharged him by requiring him to sign
the October 15 letter, which explicitly listed six job
requirements that he needed to fulfill. Except for the
requirement that he make sales calls in his territory five
days a week, Greenberg testified that he was substantially
complying with the conditions listed in the letter.
Primarily, Greenberg contends that, by requiring him to spend
two additional days a week making sales calls in Maine, Union
Camp constructively discharged him. We disagree.
It is well settled in this Circuit that, to
establish a claim of constructive discharge, the evidence
must support a finding that "`the new working conditions
would have been so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt compelled to
resign.'" Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561
_______ ____________________
(1st Cir. 1986) (quoting Alicea Rosado v. Garcia Santiago,
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562 F.2d 114, 119 (1st Cir. 1977)); see also Vega, 3 F.3d at
___ ____ ____
480 (new conditions must make work so "arduous,"
"unappealing" or "intolerable" that a reasonable person would
resign). The legal standard to be applied is "objective,"
with the inquiry focused on "the reasonable state of mind of
the putative discriminatee." Calhoun, 798 F.2d at 561
_______
(internal quotations omitted). Consequently, "an employee
may not be unreasonably sensitive to his or her working
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environment." Id. (internal quotations omitted); see also
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Vega, 3 F.3d at 476.
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Within the context of this case, we believe that no
rational jury could find that requiring Greenberg to spend
two additional days in Maine making sales calls to be so
intolerable that a reasonable person in Greenberg's shoes
would have felt compelled to resign. Initially, we note that
Greenberg does not assert that the new conditions would be
humiliating or demeaning, often an important factor in
evaluating a claim of constructive discharge. See, e.g.,
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Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992)
_______________ _______
(sufficient evidence to find constructive discharge where
evidence included scolding and ridiculing plaintiff in front
of clients on a daily basis). Moreover, in explicitly
imposing the six conditions on Greenberg, Union Camp did not
demote Greenberg or reduce his pay or total compensation.
See, e.g., Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888-
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89 (3d Cir. 1984) (constructive discharge where, along with
other factors, change in sales representative's territory
constituted substantial cut in pay); cf. Nunez-Soto v.
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Alvarado, 918 F.2d 1029, 1030-31 (1st Cir. 1990) (demotion
________
without salary cut insufficient for constructive discharge).
Indeed, at his July 1990 review, just prior to imposing the
conditions of employment, Union Camp gave Greenberg the
largest merit increase of his career. In effect, Greenberg
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contends that the requirement is intolerable because it would
require him to spend more time on the road, and possibly
(though not necessarily) another weeknight or two away from
home. In the context of this case, this is not enough.
Greenberg was a sales representative. It is hardly
unreasonable for an employer to expect its sales
representatives to spend their workdays making sales calls.
That calling on his customers meant spending time on the road
is more an unhappy aspect of Greenberg's vocation than an
unreasonable or intolerable working condition. See Bristow
___ _______
v. Daily Press, Inc., 770 F.2d 1251, 1254-56 (4th Cir. 1985)
_________________
(no constructive discharge where conditions, though
unpleasant, are part and parcel to the job), cert. denied,
_____ ______
475 U.S. 1082 (1986).
Requiring Greenberg to spend two additional days in
Maine appears burdensome only if we focus narrowly on the
fact that Greenberg resides in Massachusetts. The degree to
which requiring Greenberg to work two additional days in
Maine is unreasonable, however, must be measured within the
context of this case. Union Camp originally hired Greenberg
specifically to be its sales representative for the State of
Maine. Therefore, Greenberg, who lived in Massachusetts at
the time, accepted employment knowing that he was hired to
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sell to Maine customers.10 Thus, this case is
distinguishable from one in which an employee who lives and
works in one city is offered the choice between termination
and a transfer to another city. See Hazel v. United States
___ _____ _____________
Postmaster Gen., 7 F.3d 1, 5 (1st Cir. 1993) (suggesting that
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transfer from one city to another would support finding of
constructive discharge); but see Cherchi v. Mobil Oil Corp.,
___ ___ _______ _______________
693 F. Supp. 156, 162-64 (D.N.J.) (no constructive discharge
where employer offered transfer from New Jersey to
Baltimore), aff'd, 865 F.2d 249 (3d Cir. 1988). Because
_____
Greenberg voluntarily chose to work as the sales
representative for the Maine territory, while living in
Massachusetts, he cannot now complain of changes in his work
schedule that would not be burdensome but for that choice.
Nonetheless, Greenberg makes much of the fact that
Union Camp did not explicitly impose the mandatory five-day-
a-week-sales-call condition on any of its other sales
representatives or his younger replacement. He argues that
this disparate treatment amply supports a finding of
constructive discharge. Union Camp officials, however, all
testified that the condition was a basic, albeit unwritten,
requirement of the sales representative position. Moreover,
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10. Nowhere does Greenberg assert that he originally
accepted employment with Union Camp on the condition that he
spend no more than three days a week calling on Maine
customers.
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Greenberg does not point to any other sales representative
who similarly made calls in his or her assigned territory
only three days a week that Union Camp treated differently.
At most, Greenberg elicited testimony from his replacement
that, due to the need to finish paperwork, handle customer
requests and/or complaints, and tend to other vagaries of the
job, he occasionally passed a day without making sales calls,
but nonetheless was not required to sign a similar
conditions-of-employment statement. This evidence is
insufficient. See Smith v. Stratus Computer, Inc., 40 F.3d
___ _____ ______________________
11, 17 (1st Cir. 1994) ("In a disparate treatment case, the
plaintiff has the burden of showing that she was treated
differently from persons situated similarly in all relevant
__ ___ ________
aspects." (internal quotations omitted)).11
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Moreover, our conclusion is buttressed by the fact
that Greenberg couples his allegation of constructive
discharge with virtually no evidence that Union Camp's
____________________
11. Greenberg relies on Hazen Paper Co. v. Biggins, 113 S.
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Ct. 1701, 1708 (1993), which he asserts establishes that an
employee who refuses to sign an onerous job contract not
imposed on a younger replacement is constructively
discharged. While this premise may be true (though we do not
agree that the Supreme Court specifically addressed the
issue), Greenberg has failed to show that the "contract" here
was sufficiently onerous. In Hazen, the contract included a
_____
non-compete clause that would have prohibited the employee,
who was a trained chemist, from working in his field of
expertise for two years after leaving the company. Biggins
_______
v. Hazen Paper Co., 953 F.2d 1405, 1411 (1st Cir. 1992),
________________
vacated, 113 S. Ct. 1701 (1993). Union Camp sought no such
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restriction on Greenberg's future employment.
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motives stemmed from an animosity towards age. Direct or
circumstantial evidence of a discriminatory animus could help
substantiate a claim that one's working conditions had become
intolerable to an unreasonable degree. See, e.g., Acrey v.
___ ____ _____
American Sheep Indus., 981 F.2d 1569, 1574-75 (10th Cir.
______________________
1992) (employer request that employee quit on account of age
cited as evidence of both animus towards age and unreasonable
working conditions); Goss, 747 F.2d at 888 (verbal abuse that
____
conveyed animosity towards employee's gender supported
finding of constructive discharge). As evidence of age
discrimination, Greenberg, however, essentially points to
just two factors -- (1) the single May 1990 inquiry
concerning Greenberg's retirement plans, and (2) the fact
that no employee over age forty had been hired by Union Camp
at the Maine plant during Redman's tenure as plant manager.
A single inquiry by an employer as to an employee's
plans for retirement, however, does not necessarily show
animosity towards age. See Colosi v. Electri-Flex Co., 965
___ ______ _________________
F.2d 500, 502 (7th Cir. 1992). An employer may legitimately
inquire about an employee's plans so that it can prepare to
meet its hiring needs. Though repeated and/or coercive
inquiries can clearly give rise to a reasonable inference of
an anti-age bias (and lend support to a finding of
constructive discharge), see Calhoun, 798 F.2d at 562-63
___ _______
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(three inquires over seven months coupled with demotion
requiring employee to report to younger person employee had
previously trained, and threat of onerous working conditions
if no resignation), that is not the case here. Greenberg
alleges only that Ritter made a single inquiry at the May
1990 meeting as to whether Greenberg had plans to retire at
age fifty-five. Moreover, though Greenberg testified that he
never told Ritter or Redman that he intended to retire early,
he admitted that an anecdote he frequently recounted could
have led them to think he desired to do so.
The fact that Union Camp's Maine plant did not hire
any employees over age forty during Redman's tenure as plant
manager adds little to Greenberg's claim. As we have noted
before, without any attempt to establish the demography of
the available hiring pool, this evidence has little probative
value. See LeBlanc v. Great Am. Ins., 6 F.3d 836, 848 (1st
___ _______ _______________
Cir. 1993), cert. denied, 114 S. Ct. 1398 (1994); cf. Goldman
_____ ______ ___ _______
v. First Nat'l Bank of Boston, 985 F.2d 1113, 1119 n.5 (1st
___________________________
Cir. 1993). Moreover, Greenberg offered no evidence at trial
concerning the number of employees actually hired, thus
precluding any reasonable evaluation of the statistical data
in terms of sample size. Finally, that two years after his
departure three of seven sales representatives employed at
the Maine plant were over age forty, and that Redman,
himself, was five years older than Greenberg, makes any
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inference of animosity towards age on this evidence dubious
at best. Therefore, Greenberg's proffered evidence of anti-
age bias provides little support for his claim of intolerable
working conditions and consequent constructive discharge, and
thus his age-bias claim falls short.
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B. Retaliatory Claim
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Greenberg's claim of retaliatory discrimination
likewise fails because no rational jury could conclude on
this evidence that Union Camp acted with a retaliatory motive
in requiring Greenberg to work five days a week in his sales
territory. See Mesnick, 950 F.2d at 827 (plaintiff must show
___ _______
that employer's reason for adverse action taken against
employee is pretext masking retaliation for employee invoking
his ADEA-protected rights). Even taking the evidence in the
light most favorable to Greenberg, it is clear that his work
schedule had been an issue with his superiors at Union Camp
since at least the November 1989 meeting. Moreover, it is
not disputed that Greenberg did not adjust his work schedule
in response to the August 8 letter, in which Ritter
unequivocally wrote, "Work habits and methods must be
reviewed with action taken to better utilize open available
______ _______ ____ _________
weekly time to achieve job responsibilities." (Emphasis
______ ____ __ _______ ___ ________________
added).
Greenberg responded to this directive with his own
letter stating, "We have talked about this before and my
__ ____ ______ _____ ____ ______ ___ __
position has never changed. . . . It's been my experience
________ ___ _____ _______
that successful salesmen have different methods and if they
are successful they should be rewarded [and] not made to walk
to the same beat of some drummer." (Emphasis added).
Furthermore, Redman's August 28 letter clearly warned
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Greenberg that Ritter's letter "was written to document the
fact that [Greenberg's] performance ha[d] not been up to
expected standards in the areas of: expenses, expense
reporting, communications, work schedules and new account
____ _________
penetration." Redman concluded by stating that Ritter's
letter was "intended to emphasize the seriousness of
___________ __
continued resistance to change and critical opposition to
_________ __________ __ ______ ___ ________ __________ __
suggestions for improvement." (Emphasis added).
___________ ___ ___________
Any rational view of these interchanges makes clear
that Greenberg's continued refusal to adapt his work schedule
would result in further action by Union Camp. Hence, no
rational jury could conclude that the September 19 order
directing Greenberg to spend five days a week in his sales
territory ensued because Union Camp sought to retaliate
against Greenberg for invoking his ADEA rights. Rather, the
order was the inexorable result of Greenberg's persistence in
refusing to modify his work schedule. See Mesnick, 950 F.2d
___ _______
at 828 (ADEA should not permit a disgruntled employee to
"inhibit a well-deserved discharge [or other sanction] by
merely filing, or threatening to file, a discrimination
complaint.").
III.
III.
____
Conclusion
Conclusion
__________
In sum, because Greenberg failed to adduce
sufficient evidence to support a finding of constructive
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discharge or retaliatory motive, the district court did not
err in granting Union Camp's motion for a directed verdict on
the claims of age and retaliatory discrimination.
Accordingly, the decision of the district court is
affirmed.
affirmed.
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