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J. Steven Manning v. Thomas T. Flannery

March 31, 2012

J. STEVEN MANNING,
PLAINTIFF,
v.
THOMAS T. FLANNERY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 49

OPINION

LENIHAN, Chief Magistrate Judge

This diversity action arises from the alleged defamation of Plaintiff, tortious interference with existing and prospective contractual/business relationships, breach of fiduciary duty, and negligence by Defendants. Currently pending before the Court for disposition is Defendants' Motion for Summary Judgment (ECF No. 49). In support of this motion, Defendants argue that Plaintiff's claims are barred by the applicable statute of limitations, and even if not time barred, Plaintiff has failed to prove prima facie elements of his claims for defamation, tortious interference with existing and prospective contractual relationships, breach for fiduciary duty, and negligence. For the reasons set forth below, the Court will grant the motion for summary judgment as to all claims.

I. BACKGROUND & PROCEDURAL HISTORY

The following facts are set forth in the light most favorable to Plaintiff, the non-moving party, giving Plaintiff the benefit of all reasonable inferences. Some of these facts are disputed and are so noted.

The crux of this lawsuit centers on the search for a new Vice President of Operations for Ardex, LP ("VP Operations") conducted by Defendants Boyden*fn1 and its agents, Thomas Flannery and Stacey Holland. "Boyden specializes in senior executive search for a diverse client base that includes start-up, middle-market, and Fortune 500 companies" both nationally and globally. (10/2/07 Engagement Letter at 1, Defs. Ex. 12, ECF No. 49-13 at 2; Compl. ¶3.)

In late 2004 and January of 2005, Ardex LP retained the services of Boyden to recruit an individual for the position of President and Chief Executive Officer of Ardex LP. (Compl. ¶8.) Ardex LP (hereinafter "Ardex" or "Ardex USA") is a Pennsylvania limited partnership with its principle place of business located in Aliquippa, Pennsylvania. (Exec. Agrmt. at 1, Defs. Ex. 16, ECF No. 49-17 at 2.) As a consequence of Boyden's search, Plaintiff, J. Steven Manning, was hired by Ardex LP in January of 2005 to fill the President and CEO position,*fn2 and entered into a written Executive Employment Agreement with Ardex ("Executive Agreement") on January 31, 2005. Subsequently, in 2007, the Executive Agreement was amended twice by letter agreement which, among other things, extended Manning's term of employment as President and CEO through December 31, 2009. (Compl. at ¶9.)

Manning reported to the Board of Directors of Ardex's general partner, Ardex Holding, Inc., and to the chief executive officer of Ardex Anlagen GmbH or Ardex Amerika Holding GmbH, at Witten Germany (collectively the "Management Companies"). (Exec. Agrmt. ¶1, Defs. Ex. 16, ECF No. 49-17 at 2.) At all relevant times, Dieter A. Gundlach was the Chairman of the Board of Management of Ardex GmbH (Gundlach Letter to Zangemeister dated 3/4/08, Defs. Ex. 5, ECF No. 49-6 at 6) and, as such, was the person to whom Manning directly reported.

Between the time of his hiring in 2005 and the fall of 2007, several disputes arose between Manning and Gundlach*fn3 over, inter alia: (1) Manning's alleged refusal to relocate his residence from West Chester, New York, to Pittsburgh, Pennsylvania, within the stated time frame; (2) the amount of bonus money Manning received; (3) developing the South American market; and (4) Manning's statements towards Mark Eslamlooy*fn4 during a telephone conference regarding Ardex's development of the South American market, which were viewed as abusive and rude by Gundlach. (Gundlach Dep. 4/12/11 at 2, Defs. Ex. 6, ECF No. 49-7 at 3.) Plaintiff admits that he had some disputes with Gundlach, but takes issue with Defendants' characterization of the South American market dispute as "refusing to comply with directives from Gundlach over the South American market," or the characterization of Manning's conduct towards Mr. Eslamlooy as rude. (Pl.'s Resp. CSMF ¶8, ECF No. 58 at 5-6.)

In September of 2007, Joe Pielert, then VP Operations, left Ardex. Subsequently, Boyden was hired by Ardex to recruit a new VP Operations. The October 7, 2007 engagement letter provided, in relevant part, that Boyden was "ready to begin a search for a Vice President, Operations for Ardex/Henry[,]" and outlined the key elements of the search process. (10/2/07 Engagement Letter at 1-4, Defs. Ex. 12, ECF No. 49-13 at 2-5.) As part of the process, Boyden represented that "[d]uring the course of the assignment, we will maintain regular contact with you by e-mail or phone at a mutually agreeable interval." (Id. at 2.) Flannery further stated that Boyden hoped the key elements outlined in the letter would be a "continuation of the long-term partnership between Boyden and Ardex America." (Id. at 5.) The engagement letter was addressed to "Mr. Steve Manning -- President and CEO, Ardex America" and denoted as "Personal and Confidential." (Id. at 1.) Boyden maintains that its client was Ardex, the company and its shareholders. (Holland Dep. 8/26-27/08 at 79:9-25 -- 80:1-19, Defs. Ex. 13, ECF No. 49-14 at 8-9; Flannery Dep. 8/27/08 at 142:12-22, Defs. Ex. 4, ECF No. 49-5 at 13.) Manning disputes this and contends that the engagement letter reflects that he was the client, not Ardex. (Pl.'s Resp. CSMF ¶11, ECF No. 58 at 7-8.)

On or about 9/24/07, Gundlach telephoned Flannery to discuss the new recruitment. During that conversation, Gundlach and Flannery agreed that Ardex needed a strong individual in the position of VP Operations who could figure in succession planning given the lack of strong management talent behind Manning. (Flannery Dep. 4/27/11 at 14:7-16, Pl.'s Ex. 4, ECF No. 59-4 at 3.) Manning contends that this conversation was "designed in part to establish a means by which Flannery and the other instant defendants would communicate to Gundlach and his surrogates (i.e., Hugh Nevin) on a 'confidential' basis information which they claim to possess concerning the plaintiff and by which means Flannery and the other instant defendants could defame and disparage the plaintiff." (Defs. CSMF ¶13 (citing Compl. at ¶29a), ECF No. 51 at 3.)

Manning's position was predicated upon the content of the 9/25/07 letter sent from Flannery to Gundlach and marked "PERSONAL AND CONFIDENTIAL". (Pl.'s Resp. CSMF ¶13, ECF No. 58 at 8.) In that letter, Flannery discussed Boyden's position regarding the search that Manning wanted to conduct for VP Operations. Flannery questioned Manning's strategy of making the new VP Operations responsible for manufacturing operations, logistics and environmental issues for both Ardex and W.W. Henry, as the person hired would not likely be a successor to Manning if Manning were to leave Ardex. This raised vulnerability issues with Flannery-the organizational structure contemplated by Manning "puts more control in his hands and appears to diminish the responsibilities of his senior management team. [Flannery was] concerned that changing the organization in the manner will make the company more vulnerable if Steve does leave and that it would give Steve too much leverage in is negotiations with you." Flannery further stated that he wished the contents of this correspondence to remain confidential and to have a further discussion with Gundlach on this matter. (Defs. Ex. 14, ECF No. 49-15.)

The contents of this letter were not communicated to Manning while he was employed at Ardex. (Flannery Dep. 4/27/11 at 14:17-25 -- 16:1-3, Pl. Ex. 4, ECF No. 59-4 at 3.) When asked why he believed the contents of the letter should be kept confidential, Flannery ultimately stated that he did not want to upset the balance that existed between Gundlach and Manning. (Flannery Dep. 4/27/08 at 69:11-25 - 70:1-7, Defs. Ex. 4, ECF No. 49-5 at 11-12.) As to what he meant by "too much leverage" in his 9/25/07 letter, Flannery explained that he meant "[e]ssentially having a gun to Mr. Gundlach's head saying if I have to relocate, I will leave." (Id. at 68:20-22.)

On 10/12/07, Gundlach informed Manning via email that when the search produced two "final candidates" he wanted to meet the candidates personally before an employment agreement was signed. (Defs. Ex. 17, ECF No. 49-18.) Over the next several months, several outside and inside candidates were interviewed for the VP Operations position.

On 1/28/08, Flannery sent an email to Gundlach providing an update on the search for a VP Operations, which included an email from Stacey Holland dated 1/25/08. (Defs. Ex. 18, ECF No. 49-19.) Flannery indicated that Ardex was considering two outside candidates (Fuller and Brengel) whom Flannery described as strong, and one inside candidate (Masterson) who was described as "so-so." (Id.) Flannery further stated in this email that he was concerned that Manning would not pick the strongest candidate "because [Steve] is reluctant to bring someone into the organization that could succeed him. Steve is in a very strong position at the moment, knowing that he cannot be replaced from the inside if he leaves the company. Both Stacey and I think that if Steve leaves for any reason that there should be someone in place who could replace him, even if it would be for the short term." (Id.) Manning contends that Flannery's statements quoted above were intended to undermine him to Gundlach. (Defs.' CSMF ¶24 (citing Compl., ¶29d); Pl.'s Resp. CSMF ¶24.)

On 2/5/08, Gundlach emailed Manning inquiring as to whether there were any final candidates with whom he could meet during Gundlach's visit to Ardex's facilities in Pittsburgh on February 12-14, 2008. (Defs. Ex. 19, ECF No. 49-20.) Gundlach also emailed Flannery on that same date informing him that he had asked Manning whether he could meet some of their "final" candidates while in Pittsburgh. (Defs. Ex. 20, ECF No. 49-21.) In response to Gundlach's email sent earlier that day, Manning wrote that they had interviewed a number of quality candidates through the search process and, while they were continuing the search, Jim Masterson (internal candidate) was currently the leading candidate. (Defs. Ex. 21, ECF No. 49-22.) Manning further stated that if Gundlach was interested in meeting with Masterson during his visit, Manning would set it up and forward a copy of Masterson's CV. (Id.) Also on 2/5/08, Holland sent Angelo an email regarding Holland's conversation with Vern Fuller informing him that he was not selected and her attempts to contact Bill Brengel and inform him he was no longer a candidate. (Defs. Ex. 45, ECF No. 61-1 at 44.)

On 2/7/08, Flannery sent an email to Gundlach informing him that Manning (via Lori Angelo*fn5 ) instructed Holland to release all of the outside candidates and to put the search on hold. (Defs. Ex. 22, ECF No. 49-23.) Flannery further wrote that although he and Holland complied with Manning's instruction, they were "concerned that [they we]re losing an excellent candidate, Bill Brengel, who has a strong interest in the position, and that there is lack of sufficient management strength behind Steve to have a viable succession plan." (Id.) Flannery further stated that if Gundlach and Manning concluded that it made sense to bring Brengel back in, they would do their best to retrieve him. (Id.)

In a subsequent email from Gundlach to Manning on 2/7/08, Gundlach wrote that "our group standard for such crutial/critical (sic) positions within the recruting (sic) process is to have at least 2 up to 3 alternativ (sic) candidates. Therefore I would like to make sure to have the opportunity to meet . . . 2/3 external candidates who were already interviewed from you within the project." (Defs. Ex. 23, ECF No. 49-24.) Gundlach also forwarded this email to Flannery, without notification to Manning. (Id.; Pl.'s Resp. CSMF ¶30.) On 2/8/08 at 7:13 a.m., Manning sent a reply email again informing Gundlach that the outside candidates had been released and that he (Manning) wanted to move forward with Masterson. (Defs. Ex. 24, ECF No. 49-25.) Manning further wrote that the outside candidates had been notified that they were not selected, and therefore, it would "obviously be very difficult and very awkward to call the others back in again." (Id.) Later that same date, Gundlach responded to Manning via email reminding Manning that back in October, he asked to interview multiple candidates before a contract was signed. (Defs. Ex. 25, ECF No. 49-26.) Thereafter, at 10:32 a.m., Manning replied, repeating to Gundlach that he had already let the outside candidates go and only Masterson was available for an interview. (Defs. Ex. 26, ECF No. 49-27.) Manning further stated: "There has not been a commitment made to Jim, as we do not consider the search process fully completed. It would be a convent (sic) opportunity for you to interview Jim while you are here. Consistent with the agreement you and I made, a VP position would be filled with discussion and agreement with Germany. Hopefully this clarifies the status and will aid in the process." (Id.)

The parties dispute some of the events that occurred on 2/12/08. Defendants submit that when Gundlach arrived at Ardex USA on 2/12/08, Manning told him that the outside candidates "were not available." (Defs. CSMF ¶34, ECF No. 51 at 6.) Conversely, Manning describes his encounter with Gundlach as follows:

[At] approximately 4:30 pm [Gundlach] . . . asks me to bring in VP Ops candidates for him to see. I explain that we already had the discussion, that we already notified the candidates that they were no longer in contention, and (Lori) had already instructed Boyden to release the candidates. Gundlach then said "Steve, I trust your judgment, (sic) you're doing a fine job, but the Board is requiring me to interview at least 2 candidates." I also told Gundlach that they were mostly from out of town, had jobs, and did not think it possible on such short notice. I also stated that I had an ethics issues (sic) bringing back people for interviews when we had no intention of hiring them and already told them so. He then said "Boyden is professions, (sic) have them say something, whatever they need to, to be clever. (sic) I objected again, but [Gundlach] said well try.

Manning Memo/Timeline dated 3/31/08 at Manning 1504 (Defs. Ex. 9, ECF No. 49-10 at 11). The parties agree that when Gundlach insisted on interviewing the outside candidates, Manning instructed Lori Angelo to call Stacey Holland about the situation. (Defs. CSMF ¶35; Pl.'s Resp. CSMF ¶35.) Manning described what happened next:

I left my office, and relayed the situation to Lori. She said something to the effect ... "what, that's crazy, we can't do that, that's just wrong." I agreed and said "I agree ... we can't do that, 1 have a real ethics problem with this, but ... Gundlach is insisting so we have to." I then told Lori "call Stacy, let her know what's going on, and have her handle this. I'm sure there's no way she can get them in on such short notice, plus we've already told them they weren't in the running anymore. This is real BS". Lori and I exchanged astonished words. At that point I told her to call Stacy, and to also tell Stacy not to be surprised if she gets a call from Hugh Nevin (C&G) on behalf of Gundlach. Lori left the area in front of the conference room, went to her office, and I assume called Stacy as I had asked. Lori informed me later that Stacy was not in, but she had left a message for Stacy. Day ended that way, and I had no other discussion with [Gundlach] on the topic.

Manning Memo/Timeline at Manning 1504 (Defs. Ex. 9, ECF No. 49-10 at 11).

Later on 2/12/08, two telephone calls were exchanged between Lori Angelo & Stacey Holland, which are at the heart of the Plaintiff's defamation claim. First, Holland returned Angelo's call, during which Angelo relayed the situation with Gundlach and his request to get the two outside candidates back in for him to interview while he was in Pittsburgh. Angelo then stated, "you can't call them back in after we already released them, can you?" (Manning Memo/Timeline at Manning 1504, Defs. Ex. 9, ECF No. 49-10 at 11; see also Angelo Dep. 8/19/08 at 239:4-9, Defs. Ex. 27, ECF No. 49-28 at 5; Holland Dep. 8/26-27/08 at 81:8-13, Defs. Ex. 13, ECF No. 49-14 at 11.) Holland told Angelo that the two outside candidates, Fuller and Brengel, could come into town for an interview, but that if they were not seriously being considered for the position, it would be unethical to ask them, and Angelo agreed with that decision. (Holland Dep. 8/26-27/08 at 82:20-25 to 83:6; Angelo Dep. 8/19/08 at 239:8-22, Defs. Ex. 27, ECF No. 49-28 at 5.) Angelo and Holland further discussed whether Holland would have a problem if Angelo and Manning told Gundlach that there was not sufficient time to get the outside candidates back in, as Angelo was uncomfortable telling Gundlach, the global CEO, that his request was inappropriate and unethical. (Angelo Dep. 8/19/08 at 240:18-25 to 241:7, 242:6-20, ECF No. 49-28 at 6-8; Angelo Dep. 4/26/11 at 64:11-20 & 65:19 to 66:1, Defs. Ex. 40, ECF No. 61-1 at 11-13.)

Angelo placed a subsequent telephone call to Holland on 2/12/08 but was only able to leave a message on Holland's voice mail. (Holland Dep. 8/26-27/08 at 88:3-10, Defs. Ex. 13, ECF No. 49-14 at 14.) Angelo testified that she was calling at the direction of Manning to tell Holland to make sure that Flannery knew why the other candidates were not being asked to come back for an interview with Gundlach, in the event Flannery gets a call from Nevin*fn6 or Gundlach. (Angelo Dep. 4/26/11 at 17:22 to 19:11, Pl.'s Ex. 9, ECF No. 59-9 at 4; Angelo Dep. 8/19/08 at 240:11-15, Defs. Ex. 27, ECF No. 49-28 at 6.) Conversely, Holland testified that she recalled the message left by Angelo was that Angelo would be "uncomfortable if Stacey shared the details with Tom regarding the last conversation," and that Angelo was asking her to keep the details of their conversation about it being unethical from Flannery.*fn7 (Holland Dep. 8/26-27/08 at 87:4-25 & 88:17-22, Defs. Ex.13, ECF No. 49-14 at 13-14; Holland Timeline at BOY 000046, Defs. Ex. 33, ECF No. 49-34 at 6.)

The next day, 2/13/08, Angelo relayed her telephone conversation with Holland to Manning. (Manning Memo/Timeline at Manning 1504, ECF No. 49-10 at 11.) Manning recalled that: "Lori also stated that she told Stacy that she may get a call from [Gundlach] or Nevin directly. Stacy then told Lori (per Lori) that 'Tom will know how to handle that'." Manning Memo/Timeline at Manning 1504 (Defs. Ex. 9, ECF No. 49-10 at 11).

Manning also described his encounter with Gundlach later on 2/13/08:

Late in the day [Gundlach] asked if I had gotten the candidates scheduled. I explained that they were from out of town, they had jobs, and that we had already dismissed them. [Gundlach] didn't care, and asked if I call the candidates. I told him that I asked Lori to handle that after he and I spoke the previous day. [Gundlach] then asked me if candidates were scheduled. I told him "Lori said no, they were not available." Lori later told me late that evening that Stacy called back (again) spoke to Lori and said she may be able to call Bill Bringle, as he was unemployed. I had already told [Gundlach] the situation and did not want to raise it again.

Manning Memo/Timeline at Manning 1504 (Defs. Ex. 9, ECF No. 49-10 at 11). Gundlach interviewed the internal candidate, Masterson, before he left Pittsburgh, but not the external candidates.

On 2/14/08, Gundlach sent Flannery a copy of an email sent by Manning indicating that the search was not closed and that Boyden was continuing to look for additional qualified candidates. (Defs. Ex. 29, ECF No. 49-20 at 2-3.) However, Flannery and Holland maintain that as of 2/14/08, neither Angelo nor Manning had asked Boyden to continue the search and the search was still on hold as far as they knew. (Confidential Memo from Flannery/Holland to Gundlach & Nevin 3/6/08 ("Flannery/Holland Memo 3/6/08") at 2, Defs. Ex. 35, ECF No. 49-36 at 3.)

Sometime thereafter but before 2/18/08, Gundlach left a voice mail for Flannery indicating that Manning had told him that Boyden could not be reached and this is why candidates did not get presented to Gundlach during his visit. (Id.) Later that same week but prior to 2/18/08, Flannery telephoned Gundlach wherein he suggested that Gundlach call Holland because, according to Gundlach, she "is concerned because during the search for the VP operational, the development was not going well, was not well or something like that." Flannery also pointed out to Gundlach that Holland "has problems in cooperation with Ardex (re: Manning)" and he advised Gundlach to contact Holland. (Compl., ¶29f.) Subsequently, Gundlach telephone Holland and during that conversation, Holland stated that she did not feel "comfortable" conveying "unpleasant and not nice information." (Gundlach Dep. 11/17/08 at 36:2-6, Defs. Ex. 10, ECF No. 49-11 at 3.) She informed Gundlach that the candidates could have been called if Ardex had a genuine interest, that Angelo had been told that numerous times, and that Angelo and Holland spoke about this issue before Gundlach was in town. (Flannery/Holland Memo 3/6/08 at 2, Defs. Ex. 35, ECF No. 49-36 at 3.) Holland also told Gundlach that Angelo had asked her not to reveal to Flannery the contents of their conversation on 2/12/08 (the "don't tell Tom" voice mail or statement). (Gundlach Dep. 11/17/08 at 37:9-14, Defs. Ex. 10, ECF No. 49-11 at 4; Holland Dep. 8/26-27/08 at 87:21-25, 88:13-22, & 89:9-15, Defs. Ex. 13, ECF No. 49-14 at 13-15.)

Angelo testified that she did not learn that Holland had communicated to Flannery, Nevin and Gundlach a different version of Angelo's voice mail message, i.e., that Angelo told Holland not to tell Flannery about their conversation on 2/12/08, until Angelo was preparing for her 8/19/08 deposition in the Ardex litigation.*fn8 (Angelo Dep. 4/26/11 at 13:1-15 & 17:5-11, Pl.'s Ex. 9, ECF No. 59-9 at 3-4.) Angelo disputes Holland's version of Angelo's voice mail message. (Angelo Dep. 4/26/11 at 12:10-25 & 17:12-21, Pl.'s Ex. 9, ECF No. 59-9 at 2 & 4.) In particular, when asked at her deposition whether she ever told Holland not to reveal the contents of their conversation on 2/12/08 to Flannery, Nevin or anyone else, Angelo replied, "No." (Id.) Moreover, Angelo testified that the reason for her subsequent telephone call was to make sure Flannery was aware of her earlier discussions with Holland on 2/12/08 in the event he received a call from Hugh Nevin. (Id. at 17:22 to 18:16, ECF No. 59-9 at 4.)

On 2/18/08 at 10:12 a.m., Gundlach emailed Flannery, stating that Holland informed him of Angelo's/Manning's course of action regarding the requested interviews with candidates. Gundlach commented that Angelo's statement that "an interview is not possible, is it?" was "definitely a clear interference so that a meeting should not take place." (Defs. Ex. 31 at BOY 000038, ECF No. 49-32 at 3.) With regard to Angelo's alleged instruction to Holland to not tell Flannery about this, as he may tell Nevin, who in turn would tell Gundlach, Gundlach further commented to Flannery that "[t]his approach is of course absolutely inacceptable (sic) and shows once again that Steve is disloyal towards me. That he should even use his staff (Lori) to achieve this is highly reprehensible. Should it be necessary to have a written statement regarding this occurrence can I rely on your support in this matter?" (Id.) Gundlach testified that he was disturbed and angry by what Holland told him. (Gundlach Dep. 11/17/08 at 39:12-13, Pl. Ex. 7, ECF No.. 59-7 at 2.)

Later that day, at 2:40 p.m., Flannery responded to Gundlach's earlier email that day to both Gundlach and Nevin, stating: "I am very disappointed in Steve's handling of this situation and I believe that [h]e has worked in his own best interests rather than those of Ardex." (Defs. Ex. 31at BOY 000037, ECF No. 49-32 at 2.) Neither Gundlach nor Flannery ever attempted to confirm Holland's "don't tell Tom" version of the voice mail with Angelo. (Gundlach Dep. 11/17/08 at 79:4-9, Pl. Ex. 7, ECF No. 59-7 at 6; Flannery Dep. 4/27/11 at 39:23 -- 40:1, Pl. Ex. 4, ECF No. 59-4 at 8.)

On 2/24/08 or 2/27/08,*fn9 Manning and Angelo spoke with Holland in person about continuing the search for a VP Operations. (Angelo Dep. 8/19/08 at 226:19 to 227:4, Pl. Ex. 10, ECF No. 59-10 at 2.) Manning and Angelo indicated that although they were still considering Masterson, they wanted Boyden to continue the search. (Flannery/Holland Memo 3/6/08 at 2, Defs. Ex. 49-36 at 3; Angelo Dep. 8/19/08 at 227:1-12, 228:19-24, ECF No. 59-10 at 2.) Manning stated that he wanted someone who has not yet been a VP Operation and for whom the position would be a "step up" due to the enthusiasm it would provide to the candidate. (Flannery/Holland Memo 3/6/08 at 2, Defs. Ex. 49-36 at 3; Angelo Dep. 8/19/08 at 227:17-23, ECF No. 59-10 at 2.) Also during that meeting, in response to Manning/Angelo's direct question as to whether she or Flannery were communicating with Gundlach regarding the search for the VP Operations or for any other purpose, Holland allegedly responded in the negative. Holland also allegedly stated to Manning and Angelo in response to a direct question posed to her that she knew of no difference between Manning's and Gundlach's position, specifications and/or expectations with regard to the VP Operations position. (Defs. CSMF ¶58 (citing Compl., ¶29m), ECF No. 51 at 9; Pl.'s Resp. CSMF ¶58.)

On 2/25/08, Flannery and Nevin spoke via telephone conference regarding Gundlach's 2/18/08 email (10:12 a.m.) to Flannery. (Nevin Dep. at 58:10 to 59:2, Pl.'s Ex. 11, ECF No. 59-11 at 2.) Nevin testified that he concurred with Gundlach's statement that Manning's use of his subordinate Angelo to attempt to hide Angelo & Holland's discussion from Flannery was highly reprehensible and grounds for firing Manning. (Id. at 59:14 to 60:2; ECF No. 59-11 at 2.) Nevin also testified that Flannery expressed a concern that Manning would not pick the strongest candidate because he was reluctant to bring someone into the organization who could succeed him. (Nevin Depo. at 36:18-23, Defs. Ex. 32, ECF No. 60-35 at 4.) From this conversation with Flannery, Nevin testified it was his impression that Flannery understood that Nevin would be discussing the situation with Gundlach. (Id. at 63:7-10.)

Following his conversation with Flannery, Nevin called Holland. (Nevin Dep. at 63:12-19, Defs. Ex. 32, ECF No. 60-35 at 7.) Nevin asked Holland about the VP Operations search. (Defs. CSMF ¶61; Pl.'s Resp. CSMF ¶61.) Holland reiterated her version of the voice mail message received from Angelo on 2/12/08, maintaining that Angelo told her that neither Nevin nor Gundlach should be told of the discussion between Angelo and Holland regarding bringing the candidates back in. (Nevin Dep. at 66:19-23, ECF No. 60-35 at 10.) Nevin then asked Holland to prepare a time line of events regarding the search issues. (Holland Dep. 8/26-27/08 at 50:10-23, Defs. Ex. 13, ECF No. 49-14 at 4; Holland Timeline 3/3/08 at BOY 000045 - 000047, Defs. Ex. 33, ECF No. 49-34 at 5-7.) Nevin did not attempt to verify Holland's version of the "don't tell Tom" voice mail with Angelo because he was instructed by Gundlach not to speak with anyone at Ardex. (Nevin Dep. at 67:11-17, Defs. Ex. 32, ECF No. 60-35 at 11.)

On 2/28/08, Gundlach presented a memo to the Board of Directors in Witten, Germany proposing a resolution on the removal of Steve Manning as CEO of Ardex USA. (Defs. Ex. 5, ECF No. 49-6; Gundlach Dep. 4/12/11 at 4, Defs. Ex. 6, ECF No. 49-7 at 6.) In his 2/28/08 memo, Gundlach outlines the reasons he is requesting that Manning be terminated and requests approval by 3/3/08. (Gundlach Memo 2/28/08 at 2 & 4, Defs. Ex. 5, ECF No. 49-6 at 3 & 5.) Specifically, the grounds identified by Gundlach included: (1) lack of confidence; (2) Manning's dialogue was marked by a high degree of aggressive behavior towards the management in Witten and the employees; (3) lack of acceptance of the Ardex culture and its success factors; (4) targeted measures by Manning to achieve the termination of Peilert; (5) manipulation during the search for VP Operations; and (6) lack of support for Ardex worldwide goals (i.e., development of South American markets and employee exchange program). (Id. at 2-3, ECF No. 49-6 at 3-4.) The resolution was subsequently approved by the Board of Directors on 3/6/08. (Id. at 4, ECF No. 49-6 at 5; Gundlach Letter to Zangemeister 3/4/08, Defs. Ex. 5, ECF No. 49-6 at 6.)

Holland completed the time line requested by Nevin which was memorialized in a memo to Flannery dated 3/3/08. (Defs. Ex. 33, ECF No. 49-34 at 5-7.) Also on 3/3/08, Flannery emailed a letter to Gundlach expressing his concern about resuming the search for VP Operations when it was not clear if Manning and Gundlach were in agreement on the specifications for the position. (Defs. Ex. 34, ECF No. 49-35 at 2-7.) Flannery sought direction from Gundlach before continuing the search for VP Operations as he believed Manning would continue to reject future candidates until Masterson was selected by default. (Id., ECF No. 49-35 at 4.) Flannery also expressed his disappointment in Manning's behavior over the past five months, stating:

Our relationship with Steve has deteriorated during this most recent search engagement and I am sorry to say that I think he has not acted in the best interests of Ardex. We have provided Hugh Nevin with a timeline and details of our recent conversations and correspondence with Steve in which he has attempted to hide from you the fact that we had candidates who were prepared to meet with you. I fault both his reasoning and his actions and I cannot begin to guess why he chose to behave in such a manner.

I hope that Steve will realize his obligation to do the best for the company and that he will accept the need to bring strong managers to the company, but I can also assure you that there are other people who can ably fill his role, both on an interim and permanent basis. Whatever your decision regarding Steve's future with Ardex may be, rest assured that we will continue to work with you to build and strengthen your U.S. operations. (Id., ECF No. 49-35 at 4-5.) Flannery's statement in the second paragraph quoted above suggested to Gundlach that if Gundlach were to fire Manning, Flannery could obtain personnel to fill the position of president and CEO on an interim and permanent basis. (Flannery Dep. 8/28/08 at 158:10-20, Defs. Ex. 43, ECF No. 61-1 at 29.) Flannery could not say for sure whether Boyden profited from Manning's firing, even though Gundlach eventually hired Boyden to conduct the search for Manning's replacement for a fee of $90,000, because this fee was a significant reduction from Boyden's normal fee. (Id. at 159:24 to 160:14, ECF No. 61-1 at 30-31.)

On 3/6/08, the Board of Directors in Germany approved Manning's termination. (Gundlach Memo 2/28/08 at 4, Defs. Ex. 5, ECF No. 49-6 at 5.) On that same date, Flannery and Holland sent a confidential memo to Gundlach and Nevin summarizing the events emanating from the search for a VP Operations for Ardex USA, in which they stated, "In our opinion, Steve Manning has acted in a manner inconsistent with his role as President of Ardex, USA. He was not responsive to us during the interview process and in the end he lied to his direct superior when he told Mr. Gundlach that Boyden could not be reached. We think that he is acting in his own best interest rather than in the best interests of Ardex and that he has been insubordinate in his behavior. We are concerned that he has damaged his credibility to the point that he can no longer be viable as the head of Ardex, USA." (Flannery/Holland Memo 3/6/08 at 3, Defs. Ex. 35, ECF No. 49-36 at 4.)

On 3/11/08, Plaintiff's employment with Ardex USA was terminated for cause. (Defs. CSMF ¶77; Pl. Resp. CSMF ¶77.) At the time of his discharge, Manning was informed by Gundlach that Gundlach was unhappy with the handling of the search for a VP Operations and that Manning was being terminated for cause. (Jokelson Ltr. to Carson dated 3/12/08 at 1, Defs. Ex. 36, ECF No. 49-37 at 2.) On 3/12/08, Plaintiff's counsel sent a letter to counsel for Ardex requesting inter alia a statement of the reason(s) for Plaintiff's termination and all documents supporting the reason(s) for Plaintiff's discharge, including any documents regarding the Board of Directors approval of the termination. (Id. at 2, ECF No. 49-37 at 3.) On 3/19/08, counsel for Ardex provided a written response, indicating that Manning was terminated for "willfully misleading senior management about the search for someone to fill the position of Vice President Operations." (Prorok Ltr. to Jokelson dated 3/19/08 at 1, Defs. Ex. 37, ECF No. 49-38 at 2.) Ardex's counsel further informed Plaintiff's counsel that Ardex had no obligation to provide Manning with any and all documents supporting his discharge, except to the extent such documents were part of his personnel file, which they were not, and Manning already possessed the documents pertaining to his Executive Agreement. (Id.) Ardex's counsel further responded that Ardex was not required to disclose the specifics of Board consideration and actions to Manning. (Id. at 2, ECF No. 49-38 at 3.)

Subsequently, on 3/31/08, in response to a 3/30/08 letter from Plaintiff's counsel, counsel for Ardex further elucidated upon the reason for Plaintiff's termination: "Mr. Manning represented to Ardex as ongoing the search for a Vice President, Operations at a time when William (sic) Masterson, his preferred personal choice, was the only candidate under consideration. The recruiter for the Vice President, Operations position had been instructed to discontinue efforts with regard to other identified candidates." (Prorok Ltr. to Jokelson 3/31/08, Defs. Ex. 38, ECF No. 49-39 at 2.)

On 3/31/08, Plaintiff prepared his own timeline of the events that occurred leading up to his termination. (Defs. Ex. 9, ECF No. 49-10.) In that memo/timeline, Manning wrote:

On 3-7-08 Flannery provided DG with a letter providing his opinion of the VP Ops search, in which Flannery allegedly states that SM has lost external credibility, has acted in a self-serving manner, has not been available during the search, and in his opinion is not fit to run the company and should be removed. This is the document Mark Eslamlooy referred to having seen in his conversation with Lori, week o[f] 3-10-08 where he stated he saw "third party evidence" and he was "shocked".

Manning Memo/Timeline 3/31/08 at Manning 1507 (Defs. Ex. 9, ECF No. 49-10 at 14).*fn10 On 3/12/08, Manning noted that Angelo told him about her conversation with Eslamlooy the previous day, wherein Eslamlooy was "absolutely shocked at the document [Flannery/Holland 3/6/08 Memo] that DG showed him" which Gundlach was presenting to the Board of Directors. (Manning Memo/Timeline at Manning 1508, ECF No. 49-10 at 15.) Another entry by Manning indicates that he discussed the Flannery/Holland 3/6/08 Memo with his former secretary, Erica Daxbeck on or around 3/13/08:

ED stated that she had information (from Brigit) that the document she (Erika) accidentally saw on her computer (left by ME) was the document that Flannery sent to DG on the 6th, and that was the "third party evidence" that DG showed to Sengenmeister on Friday 7th to get his approval to terminate SM.

(Id. at Manning 1509, ECF No. 49-10 at 16.)*fn11

In addition, Manning noted:

SM - I am very concerned and suspect that Flannery fabricated and/or misrepresented information for the purpose of allowing DG to fire me, and in return, be awarded the CEO search. I believe that this was a complete set up and fabrication. Why would Flannery want, need, or be given emails between me and DG? Why conference calls on the topic days after my termination? What do my emai1s to DG have relevance to Flannery . . . after the fact? Are they trying to get their stories straight in the event I challenge? . . . I do not understand how Flannery has any first hand information about any of this, let alone be able to write a document involving conversations where people were 2 and 3 times removed. This sounds like the classic case of pronouncing the guilty verdict, and then scrambling and twisting and ...


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