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Turner v. Schering-Plough Corp.

filed: April 23, 1990.


On Appeal From the United States District Court For the District of New Jersey (Newark), D.C. Civil Action No. 86-1450.

Becker and Stapleton, Circuit Judges, and Kelly, District Judge*fn* .

Author: Stapleton


STAPLETON, Circuit Judge:

Plaintiff William Turner was terminated from his job with the defendant Schering-Plough Corporation ("Schering") after 37 years of employment. He alleges that, over the course of three years, he was demoted, had his new job eliminated, and was terminated, all because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and New Jersey's Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Turner also contends that his discharge was motivated by an intent to deprive him of pension benefits in contravention of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Finally, Turner alleges that Schering breached its contractual obligations to him under New Jersey law by discharging him without complying with implied promises it made in its employee personnel manuals.

Schering moved for summary judgment in its favor on all these claims. Initially, the district court granted summary judgment for Schering on Turner's ERISA and state law wrongful discharge claims, as well as his claims for liquidated damages under the ADEA, 29 U.S.C. § 626(b), but declined to grant summary judgment for Schering with respect to Turner's remaining claims under the ADEA and the NJLAD. Upon a motion for reconsideration, however, the district court concluded that summary judgment for Schering with respect to these remaining claims was appropriate. Turner v. Schering-Plough Corp., 705 F. Supp. 1048 (D.N.J. 1989). Turner filed this timely appeal.

We conclude that summary judgment for Schering was appropriate with respect to all of Turner's claims other than his claim under the ADEA and the NJLAD that age played a role in the decision to discharge him. On that claim, however, Turner is entitled to a trial.*fn1


Turner was 55 years of age at the time of his termination. He started as a mail boy with Schering in June of 1948 and, except for a four-year stint in the Navy, was employed by Schering until December 1985.

During his years at Schering, Turner performed capably and steadily climbed the corporate ladder. He worked as a quality control clerk, quality control supervisor, supervisor of inspection control, manager of Schering's Midwest Distribution Center, a market research associate, product manager for cardiovascular services, and manager of sales services, and also managed to complete his studies for a Bachelor's Degree in Business Administration.

In 1976, Turner reached the highest position he was destined to hold at Schering when he was selected to be Manager of Distribution Services for Schering's United States Pharmaceutical Products Division ("USPPD"). This was a grade 91 position in the Schering hierarchy which made Turner eligible for management incentive bonuses. In this position, Turner was responsible for the distribution of Schering products nationwide, the capital, labor, and logistical decision-making necessary thereto, and related functions such as customer orders, billing, and customer service. Turner supervised four to five area distribution managers, as well as Schering's Manager of Customer Service, Manager of Distribution Systems Projects, and Billing Supervisor. Overall, Turner managed between 100 and 180 employees. During his tenure, distribution services had an operating budget as high as ten million dollars, and sales of 500 to 600 million dollars.

From 1976 until September of 1982, Turner reported to Tom Grimaldi, then Vice-President for Sales of USPPD. Grimaldi is older than Turner. Throughout his years under Grimaldi, Turner consistently received performance reviews that rated his overall performance as very good. All was calm until September of 1982, when Schering altered its managerial reporting structure so that the distribution function Turner managed was transferred from the Sales and Marketing Department to the Pharmaceutical Manufacturing Department. Turner's responsibilities remained approximately the same, but he now had a new supervisor, Steven LaHood, a 35 year-old manager who had been with Schering for only two years. LaHood was not a vice-president like Grimaldi; rather he was the Director of Logistics for the Manufacturing Department.

Soon thereafter, LaHood and Turner visited several of the distribution centers under Turner's control. LaHood was displeased with what he found to be operational deficiencies such as inventory inaccuracies, management overstaffing, a poor organizational structure, and severe structural problems at the Dallas distribution center.*fn2 When he asked Turner about these problems, LaHood was disturbed because he felt Turner's responses reflected a lack of knowledge about important aspects of the operations under his control. LaHood informed Turner of his unhappiness and instructed him how the distribution services operations were to be managed.

That fall LaHood also visited Schering's distribution center in Maplewood, New Jersey. LaHood found a number of problems: inoperable lift trucks, broken conveyor belts, and a poor phone system. He believed these problems resulted in low morale among the employees, who found themselves without the necessities for performing their jobs. LaHood felt none of these problems had been adequately addressed by Turner or the manager of the Maplewood facility. LaHood transferred the manager to another position; thereafter the manager told LaHood he did not receive the support he needed from Turner to solve the problems at Maplewood.

LaHood's negative view of Turner's performance as Manager of Distribution Services is reflected in a series of performance evaluations. LaHood's first performance review of Turner was given orally to Turner in November 1982, and was memorialized in a memo on December 9, 1982. The memo details LaHood's own management style, sets forth standards to which the Manager of Distribution Services was to adhere, and lists the problems LaHood identified. LaHood specified how Turner needed to improve as a manager,*fn3 particularly in his relations with other employees, and stated that he would review Turner's performance periodically over the coming months and make an assessment to Turner's "potential future" as Manager of Distribution Services. App. at 622.

In February 1983, LaHood filled out a performance summary regarding Turner. In this summary LaHood indicates that Turner displayed "some very good performance relating to budgeting controls, inventory accuracy and productivity increases" [and noted] . . . some positive results in Bill's performance managing the daily business activities within the Distribution Services area." Id. However, LaHood again stressed the need for Turner to improve his performance in certain problem areas if he was to succeed at his level within Schering, and suggested that Turner take a "Middle Management Program," and engage in training in "Problem Solving and Decision Making", "Improved Performance", and "Assertiveness." App. at 630.

In May 1983, LaHood filled out his final review of Turner's performance as Manager of Distribution Services. LaHood rated Turner's performance as good in the following categories: (1) performance versus goals; (2) performance versus operating plan; and (3) performance versus prior year. Turner was rated as needing improvement in the areas of: (1) improvements in operations; (2) organization and planning of his own work and the work of subordinates; and (3) appraisal and development of subordinates. Turner's performance was rated unsatisfactory in these areas: (1) foresight and plans; (2) building a strong organization including key management succession; (3) leadership; (4) decisionmaking (borderline rating of needs improvement and unsatisfactory); and (5) relationship with others. Turner's overall performance rating was unsatisfactory.

This was Turner's final review because that same month LaHood recommended that Turner be replaced as Manager of Distribution Services and be offered a new position specifically created for him, Manager of Logistics Services. This was a grade 90 position in which Turner would not be eligible for management incentive bonuses and would control only ten people. LaHood's recommendation was approved and Turner was told he was being demoted on June 23, 1983. A "personal and confidential" memo by Richard Happel, Schering's Director of Personnel who reviewed the decision to demote Turner, reflects Happel's version of a conversation he had with Turner that day. The memo indicates that Turner was unhappy but unsurprised by the demotion. "Turner also said he didn't agree with the criticisms of him and still feels [redacted] is pulling the strings behind all of this." App. at 649. (Redaction in original). Turner told Happel he saw the new leadership skills LaHood advocated as negatives and that he was opposed to LaHood's style of management, but said he would give 100% in his new position, and would go see a management consultant Happel suggested. But nowhere in the record does Turner dispute the specific allegations of performance deficiencies and operational problems LaHood identified in his deposition testimony and in memos related to Turner's performance.

Turner accepted the new position, which he claims LaHood said was "viable," "dynamic," and had tremendous growth potential, and assumed its duties in July of 1983. App. at 703, 518. Turner was given the responsibility for managing the transportation of Schering products from the manufacturing site to the distribution centers, as well as responsibility for managing the distribution requirements planning and logistic projects functions. LaHood avers that this was a position in which Schering could take advantage of Turner's skills in these areas while sharply reducing his responsibilities in the area in which he was weakest, personnel management. Turner was replaced as Manager of Distribution Services by Rich Marino, a 38 year-old, hired by Schering less than a year earlier.

During his two years as Manager of Logistics Services, Turner's overall performance was graded as very good by LaHood. Lahood reviewed Turner's performance as good or very good in these areas relevant to personnel management: (1) leadership; (2) the organization and planning of his own work and work of subordinates; (3) the appraisal and development of subordinates; (4) achieving results through others; and (5) relationships with others. Turner received regular salary increases. A Schering Vice-President sent Turner a letter praising his performance, particularly for achieving a savings for the company of $660,000 in 1984, and telling him to "[keep] up the good work." App. at 796. Turner claims he achieved an even bigger savings in 1985. While in this position Turner also took steps to address some of the problems LaHood identified in 1982 and 1983. He worked with a management consultant and attended in-house training programs in effective oral communication and project planning.

In 1985, the chill wind of managerial reorganization sent shivers through USPPD. Schering formed an internal management team, which included Happel, to evaluate the Division's management structure. To aid in this task the company retained a consulting firm which advocated a management theory focusing on "reporting relationships" and "functions" in an attempt to maximize the "span of control," i.e., the managing capacity, of each manager. This reorganization study eventually resulted in a major restructuring of USPPD, allegedly consistent with this theory.

Turner's position as Manager of Logistics Services was eliminated in November 1985. Schering contends that Turner's job was eliminated because the three functions that reported to Turner, transportation, distribution requirements planning, and logistics planning, each had a more direct relationship with functions in other departments. Thus, the three functions went their separate ways; the first to purchasing, the second to production planning organization, and the remaining function to manufacturing systems-planning. The functions previously entrusted to Turner were divided among three other managers in three different Schering departments: Robert Douglass, age 41; Phillip Duffy, also age 41; and Robert Beck, age 38.

Although 3,000 employees were affected by the reorganization, Turner, despite his long years of service and very good performance as Manager of Logistics Services, was one of only 15 employees terminated company-wide after the shake-up. Though Happel and LaHood each claims to have considered where Turner might be placed within the company, the only position open for which Happel thought Turner was qualified by training and experience was that of a grade 87 packaging supervisor. LaHood claims he did not offer this job to Turner because he did not believe Turner would perform well in that position since it required direct control over 30 to 40 hourly employees, and Turner had displayed weakness in personnel management and employee ...

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