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Boston v. Macfadden Publishing

September 29, 2010

ROBERT J. BOSTON, PLAINTIFF,
v.
MACFADDEN PUBLISHING, INC., DEFENDANT.



MEMORANDUM OPINION AND ORDER

Richard J. Holwell, District Judge

Plaintiff Robert J. Boston ("Boston") filed this action against defendant Macfadden Publishing, Inc. ("Macfadden"), alleging that Macfadden terminated his employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Defendant brought a motion for summary judgment on all counts pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, defendant's motion is granted in its entirety.

BACKGROUND

Taken in the light most favorable to plaintiff, the party against whom summary judgment is sought, the record, which includes depositions, declarations, and documentary exhibits, shows the following.

Plaintiff was formerly employed at Macfadden as Senior Vice President, Circulation and Production. (Def. 56.1 Stmt. ¶ 12; Callahan Decl. ¶ 4.) Plaintiff began his employment as a production manager with Macfadden in 1991 at the age of 55, with a starting salary of $50,000. (Def. 56.1 Stmt. ¶¶ 2, 5; Pl. Dep. at 33:20--22.) He was hired by Peter J. Callahan ("Callahan"), the owner and chairman of Macfadden, after having had almost 32 years of experience in the publishing industry. (Def. 56.1 Stmt. ¶¶ 3, 4.) During his tenure at Macfadden, Boston gained several promotions and raises. By 1996, Boston was reporting directly to Jeffrey Schaeffer ("Schaeffer"), Macfadden's CEO. (Id. ¶ 13.) By 2002, Boston's salary had risen to $100,000. (Id. ¶ 15.)

In January 2005, Schaeffer prepared an annual performance assessment for Boston that was generally positive, but also noted points for improvement. The assessment praised Boston as "a true asset to our company" and noted that "we need to draw as much from his experience and knowledge as possible." (Schaeffer Decl. Ex. C.) It identified his major strengths as "his considerable knowledge and experience in magazine production and controlled circulation," and his effectiveness "as a negotiator," which helped in "saving us money in various areas of circulation and manufacturing." (Id.)

At the same time, the assessment contained criticisms of aspects of Boston's management style, falling into three general categories. First, Schaeffer criticized Boston's interpersonal skills, emphasizing the need for Boston to work more collaboratively and to be less confrontational with co-workers. (Id.) The assessment commented that Boston "tends to be defensive and protective when there is criticism, and obstructive in terms of letting managers work things out with individuals within his department without his direct involvement." (Id.) It also noted that Boston's management approach was "at times" to "intimidate" others rather than allowing them to work out solutions on their own. (Id.) Schaeffer suggested that Boston "needs to concern himself less with control and more with the ultimate outcome." (Id.)

Second, Schaeffer criticized Boston's understanding of his role in the process of magazine design. (Id.) In particular, the assessment suggested that Boston needed to employ a better understanding of his role with respect to the art department, noting that "[h]e makes judgments about art staff performance based largely on productivity, . . . and at times does not give adequate consideration to the nature of the project at hand." (Id.) It also advised that Boston "needs to work more closely, collaboratively" with art staff and "be less confrontational with art staff that he doesn't believe are working fast or hard enough, this including the Chicago based [art director]." (Id.) (emphasis in original)

Third, Schaeffer observed that circulation goals for Dance Magazine, one of Macfadden's publications, had not been met, and although "it could be argued that [Dance Magazine] has run smaller issues in the past few years, making it less attractive to subscribers and single copy prospects, we still need fresh, effective approaches to building this revenue." (Id.) Schaeffer suggested that Boston could enhance his performance generally by "participating in publishing workshops conducted by . . . circulation associations to broaden his view." (Id.)

Boston reacted to receipt of Schaeffer's evaluation in an e-mail on January 18, 2005, with a measure of self-defense. (Schaeffer Decl. Ex. D.) Regarding the assessment's criticisms of his interpersonal skills, Boston protested that he had "never intentionally tried to intimidate anyone in the company. If one felt intimidated, that's something that I can't help." (Id.) Boston responded to the charge that he was too concerned with control by asserting that he involved himself in problems of "a serious nature" only. (Id.) Regarding Schaeffer's criticisms of his interactions with the art department, Boston emphasized that his responsibility as a manager was to meet deadlines, not run the art department. He also characterized the Chicago art director's telecommuting arrangement as "one of the most ill-conceived arrangements I have seen in my many years in publishing." (Id.) In the e-mail, he blamed the failure to reach the circulation goals of Dance Magazine on the publishers of the magazine, noting that because "editorial drives circulation," the magazine's "editorial content must be weak, as well as our cover designs." (Id.)

Boston found the suggestion that he participate in circulation association workshops to be "insulting." He insisted that all negative assessments be expunged for fear that if a new CEO were to arrive at the company, "the only thing that person would have to go on, regarding me, is your evaluation." (Id.) If the dialogue between he and Schaeffer regarding his performance were to continue, Boston warned, it could "destroy our professional and personal relationship." (Id.) Schaeffer revised Boston's performance assessment to tone down the criticism in response to Boston's concerns that it would create difficulties if he had a boss other than Schaeffer. (Def. 56.1 Stmt. ¶ 28.) Schaeffer also agreed that such negative comments would be discussed face-to-face, not in writing. (Schaeffer Decl. Ex. D.)

In Boston's 2005 performance review, prepared in January 2006, Schaeffer was generally positive and avoided negative subjects that had created difficulties with Boston the previous year. (Def. 56.1 Stmt. ¶¶ 39, 40.) Nevertheless, Boston was advised to be "less strident" and to adopt a "more positive attitude" in certain areas. (Id. ¶ 40.) In December 2005, Boston received a bonus of $10,000 and a salary increase of $10,000. (Def. 56.1 Stmt. ¶ 42.) The salary increase was the first Boston had received in three years. (Callahan Decl. ¶ 8.)

On January 3, 2006, Boston told Schaeffer that Callahan wanted him to participate in a January 4 meeting between Schaeffer and Circulation Specialists, Inc. ("CSI"), but Callahan had not actually said anything to that effect. (Def. 56.1 Stmt. ¶¶ 31, 32.) Callahan and Schaeffer were angered and considered this an act of insubordination; Schaeffer wrote a memo to Callahan voicing his concerns about Boston's "latest shenanigan" on January 11, 2006, calling Boston's conduct "intolerable, completely unacceptable." (Schaeffer Decl. Ex. G.) Schaeffer also wrote an e-mail to Boston to voice his dissatisfaction about the January 3 incident, calling it "misleading and a breach of trust." (Def. 56.1 Stmt. ¶¶ 36; Schaeffer Decl. Ex. H.)

Callahan told Anna Blanco ("Blanco"), a Macfadden employee, that Boston's shortcomings and the January 3 incident should be documented, and Blanco relayed this message to Schaeffer in a January 11, 2006 e-mail. (See Callahan Decl. ¶ 8; Schaeffer Decl. ¶ 24.) On the same day, Schaeffer and Callahan discussed an organizational change that would elevate Blanco to Senior Vice President and Treasurer and Gerard Cerza ("Cerza") to Senior Vice President and Chief Financial Officer. (Def 56.1 Stmt. ¶ 34.) Under the planned change, Boston would no longer report directly to Schaeffer, but would instead report to Cerza. (Id.) Schaeffer and Callahan considered this an effective demotion for Boston. (Id.) On January 20, 2006, Schaeffer formally announced that these organizational changes would be made. (Id. ¶ 43.)

During the last several years of Boston's employment leading up to his termination in 2008, the issue of Boston's retirement came up on multiple occasions. (Boston Decl. ¶ 2.) Boston would on occasion raise the notion that he would retire with Schaeffer, and at a lunch meeting likely held in January 2006, Schaeffer asked Boston about what his plans were. (Def. 56. 1 Stmt. ¶ 37; Schaeffer Dep. at 47:7--48:12.) Boston responded that he might retire in a year or two, but that he was still unsure. (Schaeffer Dep. at 47:16--17.)

In July 2007, Boston and Callahan had a contretemps over who the company would hire to undertake subscription campaigns. Callahan directed Boston to give subscription work on two publications, Pet Business and Pizza Today, and to try to give telemarketing work on another publication, Home Furnishing News, to Hunter Marketing, a company owned by James Murray ("Murray"). (Def. 56.1 Stmt. ΒΆ 45.) Boston, however, delayed providing information to Murray, and according to Murray, because the information was received too late to be able to complete the work on time, he had to decline ...


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