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January 14, 1991


The opinion of the court was delivered by: SHADUR


 Steven Lindsey ("Lindsey") sues his former employer Baxter Healthcare Corporation ("Baxter"), charging it with (1) violation of the Age Discrimination in Employment Act of 1967 ("ADEA," 29 U.S.C. ยงยง 621-634) by passing him over for a promotion and later terminating his employment and (2) breach of his employment contract by treating actual compensation as severance pay. Baxter now moves for summary judgment under Fed.R.Civ.P. ("Rule") 56 on all of Lindsey's claims. For the reasons stated in this memorandum opinion and order, this Court grants Baxter's motion as to the ADEA claim but denies it as to the contract claim.

 As to the latter claim, however, even though Lindsey had not filed a cross-motion for summary judgment, the facts submitted by the parties on Baxter's Rule 56 motion are such as to call for a ruling in Lindsey's favor as a matter of law. Judgment is therefore ordered to be entered in favor of Lindsey and against Baxter on that claim.


 In September 1977 Lindsey was hired at age 31 by American Hospital Supply Corporation (which was acquired by Baxter in 1985) *fn2" as a Sales Representative for its Pharmaseal Surgical Products group ("Pharmaseal Surgical"). *fn3" Lindsey continued in that position until September 1982, when he was appointed Region Manager *fn4" for Pharmaseal Surgical's Washington, D.C. office. *fn5"


 When Lindsey took over the Washington office as Region Manager, it had one of the poorest performance records in Pharmaseal Surgical. Lindsey's performance as Region Manager was indisputably excellent. He was named "Region Manager of the Year" in 1983 and 1984, and his region was ranked first out of nine regions in both those years. In 1986 his region finished fifth nationally out of the 27 regions in the Pharmaseal operating group. In each of the four years that Lindsey was a Region Manager, his performance was rated "Outstanding" (or "Outstanding "), a rating described in his way on Baxter's performance evaluation forms (Lindsey Aff. Ex. 2 at 2):

This is a rating that best describes a level of accomplishment that goes well beyond reasonable but demanding standards of performance especially in the key critical areas of major responsibilities. The individual consistently demonstrates truly outstanding achievements in terms of quality and quantity of output. As an overall rating this level of performance should describe those who number among the best. *fn6"

 Specific comments on Lindsey's performance evaluations support such a description. For example, Area Manager John Bardis ("Bardis") reviewed Lindsey in his October 1985 annual evaluation (id. Ex. 4 at 2):

Steve Lindsey has performed in an outstanding manner throughout 1985. His contributions have gone beyond his Region as he significantly impacted the Area and Zone as well. . . . Additionally, Steve's intense interest in his sales representatives enabled him to gain their respect, support, and excellent sales and profitability results.

 In the following year Area Manager Kevin Gould ("Gould") summed up Lindsey's performance (id. Ex. 5 at 5):

Finally, Steve has gone beyond the call of duty during our most recent (6/86) reorganization. His attitude has been great. His results have continued to be tremendous, and he does what ever is necessary to get the job done. Steve Lindsey is one of the top region managers in the country for American Pharmaseal.

 Gould therefore recommended (id. at 4):

Steve has the ability to assume a position like Area Manager or others with similar responsibility within the corporation immediately.

 Lindsey has also tendered six letters (Id. Ex. 8) from Bardis and Vice President Joe Kletzel ("Kletzel") to Lindsey during the 1985 and early 1986 period, each commending him on his excellent performance.

 Not all comments on the evaluation forms were equally glowing, however. Lack of sensitivity and failure to communicate clearly with superiors were themes running throughout the evaluations. Bardis wrote in a June 1985 quarterly review (Bardis Aff. Ex. 2 at 2) (emphasis in original):

Attitude : Steve, I believe you demonstrate a fairly good attitude to your representatives. However, overall this is an area where I have the most concern for you. There have been occasions during the past five months where your disagreements with the way things were done within the company, were not presented appropriately. This has brought on some negative feedback from upper level managers as well as others in the organization. This can change. However, in order to do this, I suggest that you carefully plan your approach before you respond. Additionally, you must make a strong effort to remove your name from the "perceived" gossip mill within the organization. I am committed to supporting your efforts here -- but they must be your efforts.

 Then Bardis said in his October 1985 annual evaluation (Lindsey Aff. Ex. 4 at 2, 3): *fn7"

Steve has errored [sic] by not appropriately communicating upline and across within Pharmaseal. By using common sense and good manners, this can be overcome.
* * * *
Steve has a tendency to be abrupt and occasionally curt when communicating. This has hindered him in being considered for additional leadership and management responsibility.

 Gould similarly observed in his October 1986 annual evaluation (id. Ex. 5 at 3) that Lindsey:

- Needs to communicate to top managers more effectively so that they do not get the wrong impression of Steve Lindsey.
- Needs to be careful of sarcastic comments to groups or individuals, especially if they do not know him.

 Two incidents in particular are said to have concerned Lindsey's superiors. First, in late 1984 an embarrassing situation erupted when Baxter's decision to terminate a certain Region Manager was prematurely disclosed to that manager. Baxter suspects that Lindsey leaked the information to his subordinates, although when the episode was brought to his attention Lindsey denied knowledge of any such management change. Second, in 1985 Lindsey referred to a Baxter vice president as a "bitch" and berated her performance in front of a group of non-employees. Lindsey acknowledges the incident but explains that he apologized to her in a professional manner and that she accepted the apology in the same fashion.

 Non-Promotion and Termination

 Baxter carried out a series of intra-company reorganizations culminating in the formation of the Operating Room Division ("ORD") in December 1986. ORD was the combination of five divisions: Pharmaseal Surgical, Pharmaseal Nursing Products, Convertors, V. Mueller and NDM. ORD was divided into three "zones," each zone headed by a Vice President/Zone Manager who was responsible for choosing the "area" and "region" managers within his zone in conjunction with ORD Vice President of Sales Kletzel, ORD President David Nelson ("Nelson") and ORD Vice President of Human Resources James Crawford ("Crawford"). ORD required a total of 9 Area Managers and 36 Region Managers.

 Lindsey applied for the Washington Area Manager position, part of the Southern Zone headed by Bardis as Vice President/Zone Manager. In December 1986 (Lindsey was then 40 years old) Bardis told Lindsey that 32-year-old Henry Rossell ("Rossell") had been selected for that position. Instead Bardis offered Lindsey ORD's Washington/Baltimore Region Manager position at the same management level and pay as he was then receiving. Lindsey declined the offer but told Bardis that he wanted to remain with the company and seek another management position.

 Lindsey then remained on the Baxter payroll even though his duties were minimal to nonexistent. In February 1987 he spoke with and wrote to Vice President of Corporate Sales Thomas Funkhouser ("Funkhouser") about a national sales account position. Funkhouser responded in a March 17 letter that he would not be able to offer Lindsey a position, adding (Lindsey Aff. Ex. 14):

Steve, it would be even more regrettable if our corporation is unable to find suitable opportunities for you to pursue without relocation. Your track record should make you an attractive candidate for one of our divisions.

 Just a few days later Lindsey spoke to Bardis and wrote Nelson about his interest in two open Area Manager positions. He never heard again about those two positions, each of which was ultimately filled by a man under 40.

 On May 4, 1987 Lindsey received a letter memorandum from Crawford dated April 22 and stating that he had been terminated "as of February 1, 1987." That letter (id. Ex. 15, a copy of which is attached to this opinion) said that Lindsey would be able to remain on the payroll through May 8, 1987 (four days later!), which was said to constitute a total of 17 weeks of severance pay.

 On May 15, 1987 Lindsey filed a charge of age discrimination with the Maryland Commission on Human Relations ("Maryland Commission") and the Equal Employment Opportunity Commission ("EEOC"). Although the charge mentions only discrimination in promotions, Lindsey says that he also discussed the fact that he had been terminated with the EEOC representative who prepared the charge. In May 1988 Lindsey sent letters to the Maryland Commission and the EEOC amending his charge to include the allegation that he was "constructively terminated." Lindsey then brought this suit in December 1988.

 ADEA Violation

 In assessing Lindsey's ADEA claim, this Court finds itself once again looking to the McDonnell Douglas/Burdine burden-shifting analysis *fn8" -- a well-oiled machine whose operations have become familiar to judges and litigants alike in its handling of the ever-proliferating numbers of employment discrimination claims. Lindsey claims that both the denial of his promotion and his termination were discriminatory acts -- and as to each he must be able to "dance ...

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