Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


August 26, 1992

ERWIN J. SPENCE, JR., Plaintiff,

The opinion of the court was delivered by: WILLIAM M. SKRETNY


 Plaintiff Erwin J. Spence, Jr. ("plaintiff"), moves for partial summary judgment and for an order striking defendants' respective Answers for abuse of discovery. Defendants cross-move for summary judgment against all of plaintiff's causes of action. The parties' respective summary judgment motions are brought pursuant to Fed.R.Civ.P. 56. Plaintiff's motion to strike defendants' Answers is brought pursuant to Fed.R.Civ.P. 37 (b)(2)(C).

 Within the context of these summary judgment motions, defendants move for sanctions against plaintiff, pursuant to Fed.R.Civ.P. 11, for withholding evidence of a factual nature. Defendants also move to strike several paragraphs of various affidavits plaintiff has submitted in opposition to defendants' motion for summary judgment, as not being based on the personal knowledge of the affiant, in contravention of Fed.R.Civ.P. 56(e).

 Plaintiff has filed a six-count Amended Complaint, asserting causes of action for intentional tort, wrongful discharge, violation of the Age Discrimination in Employment Act ("ADEA"), and violation of the New York State Human Rights Law. Plaintiff also requests punitive damages for defendants' alleged intentional tort, and double damages for defendants' alleged willful violation of the ADEA. This case was originally assigned to Judge Curtin after its filing on February 2, 1989. It was transferred to this Court by Order dated October 12, 1990.

 This Court has jurisdiction based upon diversity of citizenship under 28 U.S.C. § 1332 and the federal claim raised pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a). New York law controls with respect to the issues outside the coverage of the ADEA.

 This lawsuit arises out of plaintiff's condition of total disability, allegedly resulting from defendants' pattern of intimidation and harassment which resulted in plaintiff's removal from his employment on instructions from his physician.

 From 1977 through November 30, 1988, plaintiff was branch manager of Maryland Casualty Company's ("Maryland Casualty") Buffalo, New York office. In his Amended Complaint, plaintiff alleges that from April 1987 through November 1988, defendant Thomas K. Fitzsimmons ("Fitzsimmons") and defendant William B. Loden ("Loden"), while in their respective management positions as officers and employees of Maryland Casualty, and as plaintiff's direct supervisors, engaged in a systematic course of conduct toward plaintiff that was threatening, intimidating and harassing, and not directed at improving his job performance. Further, with plaintiff's age as their primary motivation, plaintiff contends that defendants' conduct toward him was intentionally calculated to cause him to leave his employment prematurely and involuntarily, through either his resignation or early retirement.

 Plaintiff also alleges that since defendants' conduct was intentional and resulted in his total disability, that it constituted a wrongful discharge for which he is entitled to punitive damages. Plaintiff also contends that since defendants' conduct was willfully and unlawfully motivated by his age, in violation of 29 U.S.C. § 623(a)(1), that he is entitled to double damages under the ADEA. On his six causes of action, plaintiff seeks total damages of $ 6,000,000.00.

 Plaintiff's Partial Summary Judgment Motion

 Plaintiff has moved for partial summary judgment seeking to collect past and future long-term disability benefits allegedly due him under a Long Term Disability Plan provided to salaried employees of Maryland Casualty on May 25, 1989, by American General Group Insurance Company. *fn1" Plaintiff alleges that under the May 25, 1989 plan, he is entitled to continued receipt of total disability benefits from May 29, 1989, the date from which Maryland Casualty originally approved his disability benefits, through his sixty-fifth birthday on July 27, 1993.

 In opposition to plaintiff's motion for partial summary judgment, defendants contend that the Long Term Disability Plan that plaintiff is covered under, is not the May 25, 1989 Plan, but is the Plan that was provided to salaried employees of Maryland Casualty in August of 1987. Defendants assert that under the 1987 Plan, long-term disability benefits cease when a covered employee voluntarily elects to receive retirement benefits. Defendants further contend that since plaintiff voluntarily retired on May 9, 1989 when he requested that he begin receiving pension benefits, that he is subsequently ineligible for long-term disability benefits.

 Defendants also assert that plaintiff is not entitled to summary judgment on the issue of long-term disability benefits, since plaintiff has failed to properly plead a cause of action under the Employee Retirement Income Support Act, 29 U.S.C. § 1001, et seq., or in the alternative for breach of an insurance contract. Defendants further assert that none of the named defendants are parties from whom damages regarding insurance benefits may properly be collected. Finally, defendants seek sanctions against plaintiff and his attorneys for failing to offer evidence to the Court which defendants allege demonstrates a factual issue concerning the disability policies in question.

 In reply, plaintiff reasserts that his retirement from Maryland Casualty was not voluntary, but was coerced by defendants. Plaintiff further contends that the terms of the two Long Term Disability policies are not in conflict, since they both provide for his continued receipt of long-term disability benefits even after he retired. Plaintiff argues, therefore, that he is entitled to continued receipt of benefits under whichever plan effectively covers him. Finally, plaintiff contends his Amended Complaint adequately prays for damages of disability insurance benefits, and that defendants were on adequate notice of his alleged disability through several other sources.

 Defendants' Summary Judgment Motion

 Defendants have moved for summary judgment seeking dismissal of plaintiff's action against them in its entirety. Defendants allege that plaintiff's claim of harassment, while an employee of Maryland, fails to state a cause of action for either intentional tort or wrongful discharge, since in New York worker's compensation is the exclusive remedy for disability caused by job-related stress. Defendants further argue that their conduct has not been sufficiently outrageous to support an action for an intentional tort, and that as an employee-at-will plaintiff does not possess a cognizable action under New York law for wrongful discharge, prima facie tort, or intentional infliction of emotional distress.

 Defendants also assert that they are entitled to summary judgment on plaintiff's ADEA claims because plaintiff was neither terminated nor constructively discharged, he has failed to provide either direct or indirect evidence sufficient to allege a prima facie case of age discrimination under the ADEA, and further that since plaintiff alleges he was totally disabled, and therefore unable to work, he is ineligible for any ADEA remedy. Finally, defendants allege that total disability manifested by psychic injury is not compensable under New York law, and therefore plaintiff may not recover damages under New York's Human Rights Law.

 Defendant American General Corporation's Summary Judgment Motion

 Defendant American General Corporation ("American General"), also moves for summary judgment separately. American General claims that it did not interfere with the daily operations of Maryland Casualty which was solely responsible for dealing with its employees. American General argues, therefore, that it is not responsible for the actions of the management of Maryland Casualty. American General further asserts that on May 25, 1989, it sold a solvent Maryland Casualty to a purchaser who knew or should have known of plaintiff's suit prior to the purchase.

 Within the context of the above summary judgment motions, defendants have moved for sanctions against plaintiff and plaintiff's counsel, pursuant to Fed. R. Civ. P. 11. Defendants allege that plaintiff purposefully withheld evidence of a factual nature, concerning the two disability Plans in question, in bringing plaintiff's motion for partial summary judgment. Plaintiff responds that defendants' counsel represented to him that he was covered under the May 25, 1989 Plan. In addition, defendants have moved to strike several paragraphs of several of the affidavits plaintiff has submitted in opposition to defendants' motion for summary judgment. Defendants contend these paragraphs are not based upon the personal knowledge of the respective affiants.

 Other Motions

 Plaintiff also moves for an order striking defendants' respective Answers to his Complaint, pursuant to Fed.R.Civ.P. 37(d)(2)(C). Plaintiff alleges that defendants have willfully failed to provide several documents, personnel files, medical records, and deposition testimony as ordered by this Court and by the Magistrate Judge. Plaintiff further alleges that he has been and will continue to be irreparably prejudiced by the absence of these materials.

 Defendants respond that plaintiff's contentions have been previously and finally decided by the Magistrate Judge, and therefore are presently improperly before this Court. Defendants further respond that plaintiff's allegations are without merit since they are vague and misleading, and that defendants have complied with all prior discovery orders. Finally, defendants claim that plaintiff should not be entitled to the relief he seeks regarding this motion since plaintiff is guilty of noncompliance with prior discovery orders.

 For the reasons discussed below, this Court hereby DENIES plaintiff's motion for partial summary judgment; hereby DENIES defendants' motion for sanctions; hereby GRANTS IN PART and DENIES IN PART defendants' motion to strike several paragraphs of several affidavits submitted by plaintiff in opposition to defendants' motion for summary judgment; hereby GRANTS defendants' motion for summary judgment on plaintiff's age discrimination claims under the ADEA and New York Human Rights Law; hereby GRANTS defendants' motion for summary judgment on plaintiff's intentional tort and wrongful discharge claims; hereby GRANTS American General Corporation's motion for summary judgment; and hereby DENIES plaintiff's motion to strike defendants' respective Answers.


 Plaintiff's Employment as Branch Manager

 Plaintiff began his career with Maryland Casualty on June 16, 1950. From 1977 through December 1, 1988, plaintiff was the manager of Maryland Casualty's Buffalo, New York office. From December of 1988 through January of 1989, Loden was Director of Marketing and Branch Operations for Maryland Casualty's Mid-Atlantic Region, which included the Buffalo office. In that position Loden was plaintiff's direct supervisor. From February of 1984 through January of 1989, Fitzsimmons was Regional Vice President in charge of Maryland Casualty's Mid-Atlantic Region. In that position Fitzsimmons was Loden's direct supervisor.

 Plaintiff alleges that Fitzsimmons and Loden, in their capacities as supervisors, engaged in a course of conduct that was motivated by plaintiff's age, with the intent to cause plaintiff to remove himself from his employment at Maryland Casualty through either early retirement or resignation. Plaintiff further alleges that this course of conduct was manifested through a series of incidents, in which either Fitzsimmons, or Loden, or both, intimidated plaintiff in pursuit of their intended result.

 In the first of these incidents, in April of 1987, plaintiff was criticized by Loden during a review of the Buffalo branch office. Plaintiff was reprimanded by Loden for his unpreparedness for the review, which plaintiff alleges was due to Loden's assistant providing him with incorrect guidelines. This "reprimand" was "confirmed" in writing by a follow-up memorandum from Loden to plaintiff.

 In June of 1987, during a meeting with Loden and other members of the Buffalo branch, Loden publicly belittled plaintiff and the suggestions he offered at the meeting. Loden immediately followed the incident with a June 25, 1989 correspondence to plaintiff, in which Loden accused plaintiff of abdicating his responsibilities in the management of the Buffalo branch.

 In July of 1987, Loden told plaintiff that "because of [plaintiff's] age [Loden] knew it would be difficult for [plaintiff] to conform" to Loden's style of management. In September of 1987 while on vacation, plaintiff received a letter from Loden demanding increased production goals during the month. Plaintiff alleges that Loden sent the letter with full knowledge of plaintiff's vacation and consequent inability to timely address the demands in the letter.

 In a meeting in Buffalo in November of 1987, Loden went into a tirade, shouting obscenities at plaintiff and his staff. Loden threatened to terminate plaintiff and his staff, both at the meeting and in a follow-up letter of November 5, 1987.

 Plaintiff asserts that on January 22, 1988, Fitzsimmons and Loden taunted him by suggesting that he was "over the hill" and forgetful, blaming plaintiff for making a wrong turn and for Fitzsimmons' leaving his briefcase at the hotel.

 On February 3, 1988, plaintiff alleges that Loden berated his overall job performance, threatened him with the loss of his job, and scheduled an April 1988 review. Loden informed plaintiff that he would have no qualms over terminating a person of plaintiff's age. The day after this conversation, plaintiff became ill and was unable to attend work. The next day plaintiff consulted his physician who informed plaintiff that he had elevated blood pressure, and prescribed medication and regular visits to the doctor's office in order to monitor plaintiff's health.

 Subsequent to the April review, plaintiff informed Loden that he was physically ill as a result of the series of prior "intimidating letters and interviews" from Loden. Loden allegedly responded "good, that's what I intended." Plaintiff further alleges that in early November of 1988, Fitzsimmons and Loden publicly ridiculed his presentation at a meeting of branch managers.

 Finally, all branch managers received a telefaxed letter on November 28, 1988, scheduling a meeting in Baltimore in December. The letter contained a postscript directed only at plaintiff, informing him of the necessity that he remain in Baltimore for a special meeting with Loden. In anticipation of the meeting and of an audit of the Buffalo branch office, to be performed in his absence, plaintiff telephoned Loden. Loden refused to offer any further information about the meeting, only warning plaintiff about plaintiff's blood pressure and a potential heart attack. As a result of Loden's "sarcastic abuse," plaintiff became "even more agitated and upset," and visited his physician who allegedly prescribed bed rest and forbade any travel.

 Plaintiff alleges that as a result of the aforementioned series of events, he has been medically diagnosed as totally disabled, with his disability commencing on November 30, 1988 and continuing through the present date.

 In January of 1989, William C. Alexander, II, then Senior Vice President of Branch Operations for Maryland Casualty, "demoted Fitzsimmons from Regional Vice President and implemented . . . a company-wide change which removed Loden from any supervisory responsibilities over Branch Managers. Alexander's actions were based upon his review of a report from Maryland Casualty's Employee Relations Department, which was initiated by a complaint against Loden by another branch manager.

 The Long-Term Disability Policies

 In 1987 Maryland Casualty issued a Long Term Disability Plan (LTD Plan 1) to its salaried employees, through American General Group Insurance Company.

 On April 11, 1989, Maryland Casualty's Benefits Manager wrote to plaintiff, informing him of his eligibility for application for long-term disability benefits, and enclosing an application form.

 On May 9, 1989, plaintiff wrote Maryland Casualty's Benefits Manager, requesting that he begin receiving his pension benefits. Defendants allege that plaintiff's application for long-term disability benefits was received by the American General Insurance Group in June of 1989. Plaintiffs allege that any delay between his receipt of the application on April 11, 1989 and his submission of the application in June 1989 was due to necessary administrative delays in complying with the application's requirements for physicians' reports.

 On May 25, 1989, Maryland Casualty issued a long-term disability policy to its salaried employees through American Casualty Insurance Group (LTD Plan 2). Plaintiff contends that he is covered under LTD Plan 2.

 In its September 6, 1989 correspondence, American General Group Insurance Company informed plaintiff that his claim for long-term disability benefits had been approved. However, in that same correspondence, plaintiff was also informed that due to his election of retirement benefits that under the effective long term disability insurance policy, LTD Plan 1, that plaintiff's monthly disability benefits ceased as of the date of his effective election of retirement benefits.

 On October 21, 1991, defendants' counsel wrote plaintiff's counsel, enclosing a copy of LTD Plan 2 and offering a possible interpretation of the policy concerning disability and retirement benefits. The letter also addressed several issues regarding employees' causes of action under New York law. On November 1, 1991, defendants' counsel again wrote plaintiff's counsel, enclosing a copy of LTD Plan 1, and informing plaintiff's counsel that LTD Plan 1, not LTD Plan 2, applied to plaintiff. On December 10, 1991, defendants' counsel wrote plaintiff's counsel requesting that plaintiff withdraw his summary judgment motion because of LTD Plan 1, and the limitations of plaintiff's remedies under New York law. Plaintiff's counsel refused to do so. Defendants claim that plaintiff failed to inform this Court about their counsel's two letters and plaintiff's knowledge of LTD Plan 1, in bringing his partial summary judgment motion.

 The Discovery Process

 During the discovery process, the parties engaged in motion practice to resolve mutually alleged noncooperation between the parties and noncompliance with several discovery orders. On September 24, 1991, this Court issued an order, referring the disposition of "discovery and discovery related matters" to Magistrate Judge Leslie G. Foschio. (Order, J. Skretny, CIV-89-1-158S, September 24, 1992).

 On October 21, 1991, the Magistrate Judge issued an Order, deciding three outstanding motions to compel submitted by plaintiff, and one outstanding motion to compel submitted by defendants. (Order, M. J. Foschio, CIV-89-1-158S, dated October 21, 1991).

 On December 6, 1991, the Magistrate Judge issued a Decision and Order. This Decision and Order decided several motions brought by plaintiff. These included a motion for reconsideration of the Magistrate Judge's Order of October 21, 1991; a motion for an extension of the discovery deadline; and a motion for an order directing defendants to provide previously ordered discovery within thirty days after entry of the requested order. (Decision and Order, M. J. Foschio, 89-CIV-158S, December 6, 1991).

 In his Decision and Order, the Magistrate Judge denied plaintiff's motion for reconsideration of his October 21, 1991 Order, and denied plaintiff's motion for an extension of the discovery period. The Magistrate Judge further ordered that defendants were "to provide all outstanding discovery no later than January 6, 1992 and to further file with the court an affidavit stating that all discovery has been provided, or if not able to be provided, the reasons therefore no later than January 6, 1992." Finally, in response to plaintiff's allegations concerning the veracity of the assertions in the May 16, 1991 affidavit of Jana R. Barrett, the Magistrate Judge ordered that "defendants are directed to file a supplemental affidavit sworn to by Ms. Barrett outlining any and all searches for documents and the results of such searches that have been conducted since the date of the original affidavit."

 Plaintiff now moves this Court for an order striking defendants' respective Answers for their willful failure to comply with this Court's prior discovery Orders. In his affidavit in support of plaintiff's motion, plaintiff's counsel makes reference to several incidents that occurred prior and subsequent to the Magistrate Judge's October 21, 1991 Order. In addition, plaintiff's counsel asserts that defendants have failed to comply with the Magistrate Judge's directive in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.