Greenberg v. Union Camp Corp.

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-1312

HARVEY R. GREENBERG,

Plaintiff, Appellant,

v.

UNION CAMP CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Cyr, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

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.

Cartotto, and Choate, Hall & Stewart, were on brief for appellee.

February 17, 1995

STAHL, Circuit Judge. Plaintiff-appellant Harvey
STAHL, Circuit Judge.

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

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

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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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.

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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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

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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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.

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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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

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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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

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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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

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

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.

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).

A. Age Discrimination Claim

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

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

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

v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).

Under the McDonnell Douglas framework, the employee

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

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

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

Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994).

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,

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

Vega, 3 F.3d at 476.

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.,

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-

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.

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

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,

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

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.

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

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

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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