Ambiguous Remarks Made Almost Two Years Prior To Disciplinary Action Could Not Constitute Direct Evidence Of Age-Based Animus

Armando Vesprini founded Circle Floors, Inc., a Massachusetts-based flooring retailer and installer, in 1960. In April 1997, after serving as its president for thirty-seven years, the seventy-one-year-old Vesprini, as well as his son Michael, sold their Circle Floors, Inc. stock to Shaw, a Georgia-based corporation. In addition, Vesprini entered into a three-year contract to remain on as the president of Circle Floors. At about the same time, Shaw acquired Continental Carpets, another Massachusetts flooring company, which directly competed with Circle Floors.

A few months later, in October 1997, Vesprini executed a "Standards of Ethical Conduct Agreement." The agreement specifically prescribed that Vesprini's "use of vulgar or unprofessional language on company premises or at any time while engaged in the performance of company duties [was to be] strictly prohibited," and that "failure to abide by this Agreement may be grounds for ... termination ... without any further notice and without any requirement of progressive discipline."

Thereafter, Shaw hired forty-one-year-old Scott Mahan to investigate whether Circle Floors and Continental Carpets were continuing to compete for the same clientele. In due course, Mahan reported that there remained a significant overlap. Whereupon, after consulting with Vesprini, Shaw decided to consolidate its Massachusetts operations, including Circle Floors and Continental Carpets, into a single corporate entity ("SCFSI"). Scott Mahan was named as its president.

Vesprini suspected that Shaw was replacing him as the Circle Floors president, due to his age. Additionally, Vesprini's immediate supervisor, Jay Houston, advised Vesprini that he was "not going to be [with Shaw] much longer," that the time had come to "step back and let the young stallions run the [day-to-day] business," but that Vesprini nevertheless would serve as Circle Floors' "chief executive officer" and as a "mentor" to both Mahan and Vesprini's son, Michael.

Shortly thereafter, upon being pressed by Vesprini, Houston gave Vesprini assurances that he remained "the boss." In reliance upon the Houston assurance, Vesprini withheld any objection to Mahan's appointment as the president of SCFSI, because he believed that he was to retain the ultimate decisionmaking authority as to all business decisions relating to the "Circle Floors" division of SCFSI.

By December 1997, however, after Vesprini had come to the realization that Mahan had taken over virtually all the day-to-day operations of the merged companies, Vesprini transmitted a memorandum to Mahan requesting that he be copied on all important correspondence. Mahan simply ignored the request. Instead, Mahan informed Vesprini: "[Y]ou don't know how to run the business." and "[You are not] going to be here much longer." Mahan added that Vesprini should go play golf in Florida. Finally, Mahan maintained that Houston was not telling the truth when he gave the assurance that Vesprini would remain the "boss."

At a January 1998 meeting, Hal Long, Shaw's executive vice president, unequivocally advised Vesprini that Mahan was now his boss. Vesprini in turn advised Long that he intended to consult an attorney. In a follow-up letter, Houston informed Vesprini that Shaw intended to "relieve [Vesprini] of some of the more mundane operational responsibilities [in order that] [Vesprini would] have the time to become a needed mentor to both Scott [Mahan] and Michael [Vesprini]."

SCFSI moved into new and more spacious corporate office quarters in June 1999. Vesprini regarded the small, windowless office assigned to him "[in]consistent with an office for a chief executive officer." Moreover, every employee except Vesprini was issued a new company business card.

On October 27, 1999, while Mahan was absent on extended sick leave, Paul Ritzel, director of operations, and Suzanne Grubis, a sales manager, overheard a conversation between Vesprini and his son, during which the senior Vesprini loudly proclaimed that "Suzanne Grubis is going to f--- you," apparently referring to a reassignment of an important sales account from Vesprini's son to Grubis. Ritzel and Grubis immediately confronted Vesprini regarding this crude remark, at which point Vesprini admittedly "lost his cool," and once again resorted to profanity.

The October 1997 Standards of Ethical Conduct Agreement empowered Shaw immediately to terminate Vesprini's employment due to these profane outbursts. Shaw nevertheless permitted Vesprini to remain until his three-year employment contract expired in April 2000, with full salary and benefits, on the condition that Vesprini not enter the corporate offices without prior permission from Houston, and that Vesprini remain

Vesprini sued, alleging that the actions taken by Shaw violated the Age Discrimination in Employment Act (ADEA), as well as its Commonwealth counterpart; (ii) breached the employment contract; and (iii) constituted a constructive discharge, all of which resulted in emotional distress and the loss of annual incentive bonuses.

The district court ruled that even though Vesprini had adduced "direct evidence" of Shaw's age-based animus, no rational factfinder could determine either that any such animus constituted a precipitating factor in Shaw's employment decisions, or that Shaw's alleged breach of the employment contract had occasioned the loss of any bonuses to Vesprini. The 1st Circuit affirmed.

Vesprini v. Shaw Contract Flooring Servs.

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.