Professional Documents
Culture Documents
____________________
Robert H. Quinn, with whom
________________
were on brief for appellant.
Robert B. Gordon, with whom
________________
on brief for appellees.
____________________
May 15, 1995
____________________
Morrissey,
twenty-year
Plaintiff-appellant
employee
of
defendant-
for
Corporate
approximately one
approximately
Affairs
on
November
one week
after
he
filed age
1,
1992,
birthday, and
discrimination
Boston
Five
Bancorp,
with
Discrimination
and
Commission.
Morrissey
It
the
Massachusetts
the
is
Equal
Employment
undisputed
that
us is whether
exemption
the Bank's
to the
U.S.C.
("ADEA"),
Against
Opportunity
the
Bank
under a
in Employment
which
forced
Age Discrimination
621-34
Commission
permits
narrow
Act, 29
compulsory
occupy
positions
"bona
for
the
fide
executive"
two-year
period
or
"high policymaking"
immediately
preceding
$44,000.
question
in
the
See 29
___
U.S.C.
affirmative,
-22
631(c)(1).
and
of at
We answer this
therefore
affirm
the
I.
I.
Background
Background
__________
them in
the light
most
favorable to
be drawn from
the nonmoving
party.
of
Senior
Chief
Bank hired
1972, and
Morrissey as
later promoted
Vice President.
Executive
In
him
1978 or
Officer ("CEO"),
a Vice
President in
to the
position of
1979, the
Bank's then
Robert
Spiller, promoted
Morrissey
Morrissey
continued to
forced him
hold
this position
until the
Bank
his
capacity as
Executive Vice
President for
responsible
regulations
for
and
influence and
advising
monitoring
the
Bank
state
with
(i)
respect
Morrissey
recommending
the
served as
Committee, and
to
the
and
for
federal
merger
and
and
Bank.
In
addition
member of
the
acquisition
these
Asset and
duties,
Liability
of the Board
-33
of
Directors.
He also
meetings of the
1990,
Blampied
Robert
Spiller retired
succeeded him
as CEO.
contest
Morrissey's
assertion
shortly
before
statutory two-year
the
that this
role
in
diminished
the
after
formulation of
Blampied
took
and
defendant
The Bank
event
period
does not
took place
immediately
By Morrissey's account,
Bank
over as
policy
was greatly
CEO.
Morrissey
decisions, under
CEO
Blampied,
this
meeting
Instead, all
subset
of
senior
officers
that
did
not
include
Morrissey, which
three-year strategic
that
business plan.
Blampied
did
not
recommendations
from
him,
Blampied could
recall
Morrissey
specifically
and
that,
at
specific comments
also asserts
solicit
his
policy
deposition,
by Morrissey
with
-44
of
the
fact
that
his
sixty-fifth
birthday
that he
On
had no
intention of
was
Morrissey
retiring and
that he
October 6,
because he was
1992, Blampied
sixty-five, he
on September 29,
again told
should be
Morrissey
thinking of
retiring.
to-year
arrangement.
Morrissey
received a memorandum
to
he responded
which
Blampied that
and asked
The
later in
the
day.
Morrissey told
base," that he
was going
to "play hardball,"
day,
on the matter.
following
"checked every
and that
the
At some point
the opportunity to
13,
1992, Morrissey
At the
to
time of this
receive
pension benefits
$38,352
received
written
in
was
nonforfeitable
Benefit Plan
("QBP"),
-55
upon
contract.
federal
On
certain
conditions
age discrimination
Commission
specified
claims
with
the
and the
By his account,
in
Morrissey filed
Against Discrimination
Opportunity Commission.
state and
Massachusetts
Equal Employment
Morrissey gave the
28, 1992
of
Directors held
conference,
during
which
special
the
meeting via
Committee
telephone
voted
to
waive
pension benefit to
which he was
more
than
the
exemption.
amount of
1992.
nonforfeitable annual
$38,352 to which he
$44,000
minimum
required
was informed
amount of
pension benefit
Morrissey
The effect
to slightly
under
of the
from the
the
increase in
ADEA
the
on October 30,
August
20,
1993
(after having
in the
been
granted
claims), Morrissey
against the
-66
Executive
pension
Committee,
benefits
and the
plan.1
administrators of
The
complaint
the Bank's
alleged
age
ch. 93
United
District
Massachusetts pursuant to 28
filed
Court
for
U.S.C.
the case to
the
District
of
the
Standard of Review
Standard of Review
__________________
party opposing
inferences in
record in the
the motion,
and drawing
Coll, No.
____
to
all reasonable
94-1680, slip
op. at 10-11.
pleadings,
depositions,
admissions
on file,
show
answers
to
together with
if "the
interrogatories,
the affidavits,
and
if any,
____________________
1. The individuals named as defendants are John R. Furman,
William F. McCall, Jr., Richard J. Testa, George R. Baldwin,
Peter J. Blampied, Allan W. Fulkerson, Ernest E. Monrad,
Webster Collins, and Karen Hammond.
2. Mass. Gen. L. ch. 151B is the exclusive remedy under
Massachusetts law for employment discrimination claims.
See
___
Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.
_____
________________________
1994). Thus, we need not consider the ch. 93 claims.
-77
and that
matter of law."
is entitled
to a
judgment as
of some
____
will not
defeat
otherwise
properly
between the
supported
genuine issue
_______
of material
________
fact."
248.
See
___
A dispute as to a
v. Liberty
_______
outcome of the
governing law."
"if
Anderson
________
94-1680,
may be
Id.
___
granted."
Anderson,
________
477
U.S. at
249-50
Discussion
Discussion
__________
First, he
district court
-88
nonforfeitable
pension
benefit
after
the alleged
act
of
judgment
was
affidavits he submitted
56(f) ("Rule
improper
because
in support
Alternatively,
he argues
district court
the
supplemental
of his Fed.
material fact.
had
R. Civ.
genuine issue of
that, in view
should have
of
exercised
to defer judgment
P.
until he
We address these
issues in turn.
A.
A.
"discriminate
ADEA
makes it
against any
unlawful
individual
for
an employer
to
with
respect to
his
29 U.S.C.
623(a)(1).3
are at least
forty years of
age.
29 U.S.C.
631(a).
Nothing
in
this
chapter shall
be
construed
to
prohibit
compulsory
retirement of any
employee who
has
attained 65 years of age and who, for the
2-year
period
immediately
before
retirement, is employed in a bona fide
executive
or
a
high
policymaking
____________________
3. Because Massachusetts age discrimination
law tracks
federal law in all relevant respects, see Mass. Gen. L. ch.
___
151B
4(1B), we will confine our discussion to federal law.
-99
631(c)(1).
The parties
agree that
term "high
a "bona
policymaking
and few
published
opinions address
the exemption.
We
top
executives,"'"
1625.12(e)
level
defines
employees
and as
who
high policymakers
are
"`individuals who
not
"bona
have little
as
fide
or no
they
play a
significant
role in
the
development of
29 C.F.R.
1625.12(e)
regulations
narrowly,
invoke
and
admonishes
that "the
the exemption
that
it
burden is
to show
1625.12(b) of
should
on
that every
be
the one
construed
seeking to
element has
been
policymaker.
Spiller,
as Executive Vice
Indeed, he
concedes
that
under former
CEO
and overlooked
Morrissey's argument
one factual.
his
genuine
issues
of material
fact.
status as a high
basis of what
policymaker be determined,
he calls the
not on the
"appearances" or "trappings"
of
by
his
decisionmaking.
have been
actual
impact
on
Bank
policy
and
a high policymaker
Spiller, and
while
he continued
forced him
to hold
the same
title until
the Bank
policymaker
during
the
two-year
statutory
period,
with
Blampied as CEO.
We find
the truth of
the undisputed
high policymaker
the
relevant time
that he
period.
Bank's decisionmakers.
(ii)
ensure
developments, and
in that
and regulatory
capacity recommended
policies to
(i)
(iv)
welfare of the
Bank.
that had a
(v) He
was
responsible
litigation
for
monitoring and
involving
the
Bank,
coordinating
and
made
important tax
recommendations
acted
lower
upon Morrissey's
the interest
rate on
strong recommendation
its passbook
(vi) The
that it
savings accounts.
-1212
Bank.
effectiveness, Morrissey
that a high
policymaker within
function at some
was more
minimum level of
here.
the
to
As the district
court stated:
Morrissey had direct access to the top
decisionmakers, he was responsible for
evaluating significant legislative and
regulatory trends and issues and working
with legislators on these issues, and he
v.
866 F.
that
our
conclusion,
Morrissey was
high
the
district court
based
failed
on
the
undisputed
policymaker during
the
apply the
"functional
(2d Cir.
plaintiff's high
exemption).
-1313
We note, however,
that the
court
in Whittlesey
__________
attempt to turn
anticipated
and
rejected
Morrissey's
-1414
the
functional
test
into
test
of
policymaking
effectiveness:
_____________
I would be inclined to agree that if the
organizational
structure
of
the
enterprise makes clear that the position
in question has bona fide executive rank
or serves a high policymaking function,
courts probably should not allow the
occupant to disavow the attributes of his
position
by
seeking to
prove, for
example, that no one paid attention to
his policy recommendations or followed
his
executive
orders.
But
such
considerations are not involved in this
dispute.
Id.
___
at 1328.
Supp. 381,
diminish
See
___
386
the
also Colby v.
____ _____
(S.D.N.Y.
importance
1986)
of
his
Graniteville Co.,
________________
("Plaintiff's
duties
as
635 F.
attempt
a
bona
to
fide
common sense.").
below stated,
amending the
"[i]t is
ADEA, to
Moreover, as the
district court
intended, in
for only
retirement
despite
for high
level employees
who have
less impact,
Morrissey, 866
_________
F. Supp. at 648.
It follows
facts
from this
analysis that
any remaining
Anderson,
________
-1515
The
policymaker]
annual
ADEA
is
exemption
entitled
retirement benefit
to
from
applies
an
only "if
immediate
a pension,
[the
high
nonforfeitable
profit-sharing,
in
The Bank
contends that
29 U.S.C.
631(c)(1).
been satisfied
entitled
minimum
to
receive
slightly
nonforfeitable annual
more
than
benefit
the
through a
not
benefit.
been
manipulations
met
Morrissey argues
because
of the
the
law
pension benefit
"last-minute
to bring
an employee
of the
district
of the
interpretation, the
qualify as
receive
649.
court
pension
considered
benefit prong.
exemption would
apply to
an adequate
pension."
two
Morrissey,
_________
possible
Under
one
employees who
these employees
866 F.
Supp. at
-1616
to
pay
out
policymaker
$44,000 annually
compelled to
interpretation,
both the
____
prongs
exemption
of
the
in
benefits
retire."
job
Id.
___
for every
Under
function and
comprise the
court's
distinct temporal
to
determine
Id.
___
two-year minimum on
district
the second
pension benefit
test
both prongs
analysis,
high
the
of the exemption.
exemption
same
By
the
contains
two
applies to the
___
Had Congress meant for both prongs to be subject to
the two-year
exemption
to
immediately
policymaking
minimum, it
the
employee
who
"for
the
[and]
___
is
limited the
2-year
in a .
. . high
entitled
period
to
an
. . . . "
-1717
Under
the ADEA,
entitled to
amount in
nonforfeitable
In opposition
to
the Bank's
motion
for
summary
be denied or,
urging
alternatively, deferred
"meaningful discovery."5
the court responded
At the
hearing,
by ordering
Morrissey to
Morrissey
memorandum
summary judgment
file a
responded
and affidavits
by
The court
more specific
by
four
filing a
Rule 56(f)
supplemental
individuals,6 which
he
also
individuals.
these
dispute
position
when
requested
On appeal,
affidavits
Blampied
permission
Morrissey
demonstrated
of material
fact,
became
to
CEO.
The
depose
these
contends that,
the existence
the district
of
because
a genuine
court should
have
____________________
5.
6. The
affiants were Vernon L. Blodgett, Senior Vice
President and Treasurer of the Boston Five Bancorp from 19901993; J. Barbara Magnuson, Corporate Secretary at the Bank
denied
or deferred
summary
judgment to
allow for
further
a party opposing
demonstration of
"an
entitlement to,
an additional
facts essential
to mount
Although the
need for,
interval in which
an opposition."
authentic
judgment
and
an
to marshal
Resolution Trust
________________
22 F.3d 1198,
1203 (1st
Cir.
against
who
seeks
to
authoritative and
the
timely proffer;
invoke
rule
must
(i)
make
an
cause for
facts
material issue; and (iv) show that the facts are discoverable
within a reasonable amount of time.
Id.
___
Leitch v.
______
985,
(1st Cir.
988
denial of a Rule
1988).
We
review a
840 F.2d
district court's
of discretion.
supplemental
affidavits support
the argument
-2020
that
did
address
not include
any of
unequivocally
Morrissey.
the undisputed
establish
that
These affidavits
facts
set forth
Morrissey
was
do not
supra that
_____
a
high
policymaker.
Conclusion
Conclusion
__________
reasons, we affirm the district
we affirm the district
_______________________
Costs
Costs
_____
-2121