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Gordon v. Prudential Financial

July 24, 2008


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court are a motion for leave to amend the complaint and scheduling order brought by plaintiff Dennis Gordon and a motion for summary judgment brought by defendants Prudential Financial, Inc., John Greene, and Matthew Voelker. For the following reasons, the Court denies the motion to file an amended complaint and grants the motion for summary judgment.


Factual Background

Plaintiff Dennis Gordon, a former employee of defendant Prudential Financial, Inc. ("Prudential"), brings this action against Prudential based on allegations surrounding his retirement after twenty-nine years of employment. Also named as defendants are Gordon's supervisor, Matthew Voelker, the Vice President of the Western Territory, and Voelker's supervisor, John Greene, President of Agency Distribution for Prudential.

The Court views the facts in the light most favorable to Gordon as the non-moving party, although many are disputed by defendants. Plaintiff began working for Prudential in 1977 in Easton, Pennsylvania. In 1996, he took the position of agency managing director (hereinafter "managing director" or "MD") for the San Diego agency. The performance of his agency rapidly improved under his leadership. Plaintiff, however, began to observe that other older managing directors were being "forced out" and replaced by younger individuals. Plaintiff began to experience poor treatment at the hands of Greene and Voelker and began to fear that he would also be involuntarily terminated.

Specifically, Greene began to implement changes in Prudential's annual compensation structure. Plaintiff strongly disagreed with these changes and believed they hurt the company's ability to retain and recruit employees. When plaintiff attempted to privately discuss his concerns about these changes with Greene, Greene encouraged him to discuss his concerns publically at a meeting with other managing directors. Greene responded to plaintiff's concerns angrily and demanded acceptance of policies which plaintiff viewed as destructive.

Several incidents which followed lead plaintiff to believe Greene did not like him. When plaintiff's agency won an award in 2003, Greene took an excessive amount of time to review the results and confirm plaintiff's award. When plaintiff followed the normal practice and planned a dinner to honor his agency for this award, Greene did not support plaintiff's efforts. While normally a celebratory dinner would be held at an expensive location, Greene criticized plaintiff's choice of the Hotel Del Coronado. He made planning the dinner difficult, changing the date four times and scheduling meetings at inconvenient hours. Although Greene apologized at the dinner for not supporting plaintiff's choice of location, plaintiff remained hurt that Greene was so rude and critical throughout the party-planning process and at the party.

In 2004, Prudential investigated an accusation by a former employee at plaintiff's agency. Plaintiff believes the manner of investigation was "harsh, intrusive, accusatory, and I felt very unprofessional and demeaning to my staff and myself." (Gordon Decl. at ¶ 15.) Human resources conducted an investigation of another complaint, beginning in January of 2005, in an "aggressive, demeaning, and accusatory" manner. (Id. at ¶ 20.) Plaintiff does not substantiate these descriptions with any specific details.

Plaintiff believes these actions were motivated by plaintiff's age, which was fifty-four in 2005. Plaintiff explains "[b]y this time, I was aware that GREENE had made disparaging statements regarding older agency managing directors and that he, essentially, wanted to get rid of them and put younger people in control of the various agencies." (Id. at ¶ 18.)

Age-related comments were made in plaintiff's presence on two occasions. At a 2005 meeting, plaintiff heard Greene express concern regarding "the aging and ages of the agent population." (Gordon Dep. at 565.) On another occasion, an unidentified younger employee made a comment in Greene's presence about a managing director's absence from a meeting. The younger employee joked that older managing directors have lots of vacation time and are always on cruises. (Gordon Dep. at 592.)

In the Spring of 2005, plaintiff spoke with Sharon Taylor, the head of human resources, about his concerns. He explained he disliked Greene and Voelker's management style and disagreed with their changes to the compensation structure. He told her that Greene had made disparaging remarks about older employees and that he would like Taylor to investigate, but not to discuss the issues with Greene or Voelker. Plaintiff also complained about the investigations into his agency and voiced his concern that Voelker and Greene were unethically failing to report an accurate number of inactive agents. Taylor contacted Suzy Domenick Burnham, a human resources assistant to Greene, and inquired about one of the investigations of plaintiff's agency. Taylor did not follow up with plaintiff, and he did not know whether or not she had investigated.

At a meeting on July 12 and 13, 2005, plaintiff expressed his concerns about the company. Plaintiff characterizes the events of the meeting as follows:

My style has always been one of passion for the business of PRUDENTIAL and a commitment to make the company better. People who know me will all say that I am an open and honest person. In this meeting there was present Roy Friedman who had known me for years. He had been appointed Vice-President for the Life Division and asked for feedback, thoughts, ideas, and suggestions about how to increase the company's life insurance production. I expressed my thoughts in my style and hit the [sic] as a matter of emphasis to convey my thoughts and concerns. (Gordon Decl. at ¶ 28.) The declaration appears to contain a typographical error and does not state what plaintiff hit during the meeting, but plaintiff's counsel confirmed at oral argument that the object plaintiff hit was the table. (See also Kern Dep. at 105.)

Plaintiff states no one at the meeting, including Voelker, reacted to this "innocuous" incident until Voelker brought it up during a phone call on July 19, 2005. On July 25, Voelker sent plaintiff a "focus" or "fire-up" letter, which is the first stage of a disciplinary action at Prudential. The letter explained that plaintiff would have to be more professional and should not use profanity at work.*fn1 Plaintiff offered to publically apologize, but Voelker said that would be unnecessary.

On November 18, 2005, Voelker called plaintiff despite knowing he was taking a personal day and attending a seminar. During a break in the seminar, plaintiff returned Voelker's "urgent" call and Voelker berated him for his bad attitude, inappropriate demeanor, and the July incident. Voelker suggested that if plaintiff was thinking of retirement, Voelker would assist him in obtaining a severance package. Voelker questioned plaintiff's commitment to the company, and confronted plaintiff about his plan to take a cruse and miss another meeting in December, his third missed meeting in a row. Plaintiff reminded Voelker that the cruise was in honor of his 35th wedding anniversary, and plaintiff had cleared the date with Voelker's staff prior to booking it.*fn2

Voelker brought these issues up again in a call on November 29, 2005.

On the day before plaintiff left town for the birth of his grandson and the Christmas holiday in December of 2005, Voelker told plaintiff to expect an important letter by fax. The letter was an "action plan," the next step in Prudential's disciplinary process. It stated plaintiff was not adequately progressing in responding to management's concerns about his attitude. The "action plan" reiterated the same concerns about plaintiff's "communication style and frequency, professionalism, business maturity and leading by example" and stated plaintiff had not adequately addressed these issues. The "action plan" also stated plaintiff must attend all future national management meetings, have his vacation days approved, and focus on Prudential work during ...

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