Full opinion text
MEMORANDUM LEGG, District Judge. I. INTRODUCTION Pending before the Court are cross-motions for summary judgment filed by both parties to this employment discrimination case. Plaintiff, Debra J. Diamond, is a portfolio manager and financial analyst who worked for defendant, T. Rowe Price Associates, Inc. (“T. Rowe Price”), from 1977 until 1992. Headquartered in Baltimore, T. Rowe Price is an investment management firm that is known nationally for its large, publicly held mutual funds. Alleging gender and religious discrimination, Diamond sued her former employer under the Equal Pay Act of 1968 and Title VII of the Civil Rights Act of 1964. This Court’s earlier rulings narrowed Diamond’s complaint, as amended, to three claims. They are: (1) that she received unequal pay for the three years ending April 16, 1992, the day her suit was filed; (2) that she was constructively discharged on March 24, 1992, her last day of work; and (3) that T. Rowe Price, animated by discrimination, failed to promote her to the position of Managing Director. T. Rowe Price responded to the suit by denying the charges and by filing a counterclaim. Divided into six counts, the counterclaim, as amended, generally alleges that Diamond misappropriated T. Rowe Price’s confidential documents and trade secrets when she left work and that she has refused to repay loans and advances. Following extensive discovery, both sides filed motions for summary judgment. T. Rowe Price moved for summary judgment on all claims in Diamond’s amended complaint and also on Count VI of its amended counterclaim. Diamond opposed the motions and also moved for summary judgment on all counts of the amended counterclaim. The issues were thoroughly briefed; the memoranda and supporting exhibits on file run over 1000 pages. On November 24 and 29, 1993, the Court heard oral argument on the motions relating to Diamond’s amended complaint. Under D.Md.R. 105.6, the Court shall dispense with argument on the motions relating to the counterclaim. Because of the large number of issues involved and the length of this Memorandum, the Court will briefly summarize its reasoning and conclusions. First, as to the compensation discrimination claim, Diamond must establish that she was paid less than male fund managers because of her gender or her religion. This she cannot do. During the relevant time, Diamond’s pay at T. Rowe Price was directly tied to the objective success of the two funds she managed. As detailed in two successive employment contracts, one for each fund, Diamond’s compensation was composed of a fixed base salary and incentive bonuses tied both to the funds’ absolute growth and to their performance relative to a stock market index. The contracts, which were negotiated at arm’s length through counsel, specify that T. Rowe Price had no obligation to award Diamond annual bonuses, stock options, or other sums not provided for in the agreements. Thus, under these contracts, Diamond’s compensation fluctuated with the success of her funds. The first fund, New Frontier Fund I, was highly profitable. Upon its liquidation in 1989, Diamond received her annual salary of $100,000 plus almost $1 million in bonuses. Annualized over the fund’s life (1985-1989), Diamond’s compensation averaged approximately $325,000 per year. The second fund, New Frontier Fund II (“NFFII”), lost money, however. From 1990-1992, Diamond’s annualized compensation amounted to little more than her base salary of $130,000. As a matter of law, an employee’s compensation discrimination claim fails if the employee is paid according to a system that pegs earnings to quality or quantity of production or any factor other than sex. The Court concludes that Diamond’s employment contracts established such a system. Accordingly, the Court shall grant T. Rowe Price’s Motion for Summary Judgment as to Diamond’s compensation discrimination claim. Second, Diamond, who left work on March 24, 1992, contends that T. Rowe Price constructively discharged her by eroding her management authority as to the second fund and by encouraging the fund’s investors to withdraw their money. Through these actions, Diamond claims, T. Rowe Price forced her to resign. The Fourth Circuit has cautioned that constructive discharge claims must be “carefully cabined” because they are “open to abuse by those who leave employment of their own accord.” An employee must show that his or her employer deliberately made working conditions so intolerable that any reasonable person would have resigned. Diamond cannot make such a showing. Diamond admits that no one at T. Rowe Price was hostile, personally abusive, or discourteous to her. Indeed, the persons she accuses of discrimination are the very same persons who worked with her amicably for over a decade. Diamond also concedes that two top-echelon managers at T. Rowe Price indicated that she had a place at the firm despite the poor performance of the second fund. While her long term future at T. Rowe Price was unclear, Diamond left before she and the firm had an opportunity to explore a mutually satisfactory job assignment after the liquidation of NFFII. Given Diamond’s high base salary and the non-hostile work environment at T. Rowe Price, the Court concludes that no reasonable person would have felt compelled to resign when Diamond did. Accordingly, the Court shall grant T. Rowe Price’s Motion for Summary Judgment on Diamond’s constructive discharge claim. Finally, Diamond’s claim for failure to be designated a Managing Director also fails. The term “Managing Director” is largely an honorary title given to a relative handful of T. Rowe Price’s senior management employees in recognition of their exceptional responsibility within the firm. Generally speaking, Managing Directors either run entire departments or manage funds valued in the hundreds of millions or even billions of dollars. Diamond, in comparison, managed two successive limited partnerships, each valued at approximately $20 million, and supervised two employees. Diamond’s responsibility within the firm, while substantial, simply did not approach the managing director level. Additionally, T. Rowe Price demonstrated that a male portfolio manager with a more successful investment record and more responsibility than Diamond has also not been named Managing Director. The Court concludes, therefore, that no reasonable jury could find that Diamond had the objective qualifications to merit the title of Managing Director. Accordingly, the Court shall grant T. Rowe Price’s Motion for Summary Judgment on Diamond’s promotion claim. The Court also disposes of all six counts of T. Rowe Price’s amended counterclaim. The first five counts involve Diamond’s alleged refusal to return a large number of T. Rowe Price files that Diamond maintained in her office at home or took with her when she left the firm. T. Rowe Price’s claims fail. Diamond has now returned the files. T. Rowe Price has proffered no evidence that Diamond misused them or that the firm suffered any damage from their temporary absence. Thus, the Court shall grant Diamond’s Motion for Summary Judgment as to Counts IV of the amended counterclaim. Count VI involves Diamond’s alleged failure to repay T. Rowe Price loans and advances associated with the two funds she managed. The sums involved total $110,085. Of this figure, $35,000 represents a demand note that is now due and payable, and the Court shall grant T. Rowe Price’s Motion for Summary Judgment in that amount. The remaining $75,085 represents cash distributions that the NFFII partnership allegedly dispersed to Diamond in error. This Court lacks subject matter jurisdiction over this controversy, however. The documents governing NFFII provide that any disputes over the second fund will be resolved in the courts, and according to the laws, of the Netherlands Antilles. Thus, the Court shall dismiss the $75,085 claim for lack of subject matter jurisdiction. In sum, after careful consideration of these issues, the Court shall, by separate order, (1) GRANT T. Rowe Price’s motion for summary judgment on all counts of the second amended complaint; (2) GRANT Diamond’s motion for summary judgment on Counts I-V of the amended counterclaim; (3) GRANT T. Rowe Price’s motion for summary judgment on Count VI of the amended counterclaim as it relates to a $35,000 loan to Diamond that she has not repaid; and (4) DISMISS, because of lack of subject matter jurisdiction, that part of Count VI of the amended counterclaim relating to $75,085 that T. Rowe Price allegedly overpaid Diamond. II. FACTS In 1977, T. Rowe Price hired Debra J. Diamond as a research analyst. After a three-month probationary period, she was assigned to the New Horizons Fund (“New Horizons”), a mutual fund invested primarily in the common stock of small, rapidly growing companies. Specializing in health care and service companies, Diamond compiled a solid record and advanced within the company. Within several years, she had become a member of the Advisory and Investment Committees of New Horizons as well as a Vice President of T. Rowe Price. By the mid 1980s, Diamond wished to be placed in charge of a fund. She alleges that she was passed over for such responsibility in favor of males with lesser performance records. Her solution, Diamond contends, was to create a fund of her own. In 1985, through the efforts of Diamond, T. Rowe Price, and Drexel Burnham Lambert, New Frontier Fund I (“NFFI”) was created. An investment limited partnership, NFFI was capitalized by contributions total-ling approximately $20 million from the limited partners, all of whom were European, and $500 thousand from T. Rowe Price, the general partner. As general partner, T. Rowe Price bore ultimate responsibility for the fund’s performance and designated a senior executive, Edward J. Mathias, to serve as the fund’s director. Although Mathias was Diamond’s nominal supervisor, Diamond, as the fund’s president, actively managed all aspects of NFFI’s affairs, including marketing, raising capital, selecting stocks, and communicating with investors. According to the fund’s prospectus, NFFI would concentrate on the common stock of small (capitalization under $35 million) publicly traded “growth” companies. After approximately five years, the partnership would be terminated and the corpus of the fund distributed. At this time, Diamond not only wanted a fund to manage, but she also considered her compensation to be discriminatorily low. Under the standard compensation system at T. Rowe Price, a professional level employee such as Diamond could expect to receive a base salary plus an annual bonus and stock options as determined by the Compensation Committee. Although Diamond regularly received annual bonuses and stock options before 1985, she was dissatisfied with her overall compensation, which, she believed, reflected neither her performance nor her responsibilities at the firm. During the inception of NFFI, Diamond hired an attorney to negotiate a contract that would remove her from the standard compensation system. Diamond’s objective was to link her remuneration to NFFI’s performance. In a memorandum dated March 29, 1985 to T. Rowe Price’s management, Diamond proposed “reducing or freezing [her then $95,000] salary at current levels.” In addition, Diamond stated that she “would expect little or no bonuses on an annual basis for the life of the New Frontier Fund.” Some members of T. Rowe Price’s Management Committee resisted making an exception to the standard pay system. Diamond was requesting a compensation scheme that was, and is, unique within T. Rowe Price. According to Diamond, she persisted in her request, and, after protracted negotiations, a contract (the “1985 Agreement”) was signed on May 20, 1985. The 1985 Agreement provided that Diamond would receive, for each year of NFFI’s existence, a base salary of $100,000. The Agreement also contained two incentive clauses that Diamond believed would generate the majority of her income. One clause accorded Diamond a 12.5% share (the so-called “carried interest”) of T. Rowe Price’s investment in the fund. The other clause provided that Diamond would receive incentive bonuses tied to the fund’s performance relative to the median fund in the Lipper Small Growth Company universe (“Lipper Universe”). The 1985 Agreement also removed Diamond from T. Rowe Price’s standard compensation system and its concomitant expectation of annual cash bonuses and stock options. The contract stated that T. Rowe Price “shall not be obligated to award to [Diamond] any cash bonus, stock bonus or other benefits involving the stock of [T. Rowe Price] except as specifically provided in the Agreement.” Diamond’s $100,000 base salary was less than the total compensation (including bonuses and stock options) that she had been receiving under T. Rowe Price’s standard compensation system. Confident that the fund would be a success, however, Diamond was willing to assume the risk that she might receive little more than her base salary if NFFI did not perform as she expected. Under Diamond’s management, NFFI performed admirably. In 1989, after five highly successful years, the fund was liquidated and the proceeds distributed to the investors. In that year, Diamond, based upon the objective performance criteria in her contract, received, in addition to her annual salary, a cash distribution of $439,386 and an incentive bonus of $555,446. While NFFI was winding down, a second limited partnership, New Frontier Fund II (“NFFII”), was created. As reflected in the partnership documents, the new fund, which again featured Diamond as the portfolio manager, mirrored the structure and duration of NFFI. As discussed infra, the new fund’s stated investment strategy, like NFFI, was to concentrate on small, thinly traded companies with high growth potential. Diamond raised the partnership’s $25 million capital from approximately 15 European investors — some of whom had invested in NFFI. As general partner, T. Rowe Price invested $1 million On June 5, 1989, Diamond and T. Rowe Price executed a compensation contract for NFFII (the “1989 Agreement”) that was essentially a reiteration of the 1985 Agreement. Diamond’s base salary was raised to $130,000. Her carried interest in T. Rowe Price’s investment was increased to 13.5%. Diamond was again to receive an incentive bonus if the new fund outperformed the median fund in the Lipper Universe. The language governing cash bonuses and stock options was somewhat modified. At Diamond’s request, the 1989 Agreement provided that T. Rowe Price “shall, from time to time, consider awarding [Diamond] cash bonus, stock bonus and other benefits including the stock of Price Associates, provided, however, that this sentence shall not obligate Price Associates to make any such awards, except as specifically provided in the Agreement.” Unfortunately, NFFII performed poorly. Although the fund gained in 1989 and 1990, it lost over one quarter of its value in 1991. T. Rowe Price labels 1991 an “unmitigated disaster,” and Diamond herself admits that 1991 was a “very poor year for the fund.” In 1991, Diamond believed that the stock market was overvalued and due for a downward correction. To take advantage of the anticipated “bear” market, she adopted a “short-selling” strategy. In a successful short sale, the investor borrows an overvalued stock and, anticipating that the stock’s price will decline, sells it. The investor repurchases the stock after its price has dropped, returns the stock to its original owner, and pockets the difference. As of December 31, 1991, NFFII had outstanding short positions totalling $32 million in over 85 companies. In comparison, the fund’s equity positions (in 35 companies) were valued at $4.3 million. Diamond was wrong about the market. The downward correction never occurred. Instead, NFFII’s portfolio was short in a sustained “bull” market that has carried the major stock indices to all-time highs. In 1991, for example, when NFFII lost more than 25% of its value, the Standard & Poor’s 500 stock index rose more than 30%, the NASDAQ Composite rose more than 56%, and the median fund in the Lipper Universe rose more than 51%. NFFII’s losses continued in 1992 until, the fund was liquidated. NFFII’s poor performance and extensive short sales generated dissatisfaction among a number of the fund’s investors. In March 1991, for example, Lisa Boucher of Baring Investment Management Limited wrote that she had invested in NFFII “to gain exposure in small stocks.” By shorting so much of the portfolio, Boucher stated, Diamond had “moved aggressively from the mandate” of investing in small, growth companies. Similarly, Susan O’Brien of Framlington Investment Management Limited complained in a letter dated August 14,1991 that, “instead of investing in smaller growth companies, [NFFII was] involved in selling short the shares of both large and small companies.” Her company, O’Brien wrote, was “disturbed at the change in direction of [Diamond’s] investment policy.” Another investor, Henri Caíame of Coges, S.A., wrote to Diamond on June 12,1991 that his company was “quite upset.” Diamond personally fielded complaints during an investor relations trip to Europe in October and November 1991. She testified on deposition that some investors “told [her] they were unhappy [about NFFII] before [she] even had a chance to introduce [herself].” Other investors who did not register complaints were concerned nevertheless. This is demonstrated by depositions taken in Europe in connection with this litigation. Richard Martin of Capital House Investment Management Limited testified that “while [NFFII] did have some investment in smaller US companies it also ... was increasingly adopting short positions which would have the effect of negating, or partially negating, that investment.” Antony Milford of Framlington Investment Management Limited asserted that “[NFFII] was not doing what we had been led to believe it was going to go when we invested in it. Certainly, if we had known what it was going to do[,] we would not have invested in it.” Similarly, Tony Pike of Australian Mutual Provident Society observed that “[t]he investment had shown the very poor return and the fund appeared to be managed outside the original objectives and intentions of the fund. We saw no point in continuing with it.” Toward the end of 1991, Mathias became increasingly concerned about NFFII. He knew that the fund was losing value in a rising market. Reports of investor dissatisfaction had reached him. He also learned that investors were tendering their shares for redemption. The requests for redemption presented a problem because, under the NFFII governing documents, only 5% of the outstanding shares could be redeemed in any single year. As of December 31, 1991, however, approximately 10% of the outstanding shares had been tendered. Because of the 5% provision, some investors would be “locked” into the partnership against their will. These factors troubled Mathias, who was concerned about damage to T. Rowe Price’s reputation in the European investment community. He was also worried about the threat of litigation against T. Rowe Price. As a result of these concerns, Mathias, with the assent of the firm’s Management Committee, assumed a more active role in directing the fund’s affairs. In early January 1992, he ordered Diamond not to increase the net short position of NFFII. Diamond viewed the order as undermining her authority but complied nevertheless. On January 10, 1992, Diamond circulated to the firm’s Management Committee the draft of a letter she proposed sending to NFFII investors before they received the upcoming quarterly report. In the sixth paragraph of that letter, Diamond wrote that “the Fund’s portfolio is no longer being actively managed by me” and “the performance of 1992 will not reflect a portfolio as I would structure it.” On January 13,1992, George J. Collins, the Chief Executive Officer of T. Rowe Price, sent his secretary to Diamond’s office with a memorandum which directed Diamond not to mail out the draft. The Collins memorandum also expressly forbade Diamond from “faxing, writing, telephoning, or in any other way communicating with [her] clients.” Collins wrote that the “matter will be discussed at the Management Committee shortly” and that Diamond “will wait for [the Committee’s] reply.” Further, while the secretary watched, Diamond was required to sign the Collins’ memorandum, thus indicating that she would abide by his order. On or about January 10,1992, Mathias left for California on business. He was accompanied by Brooks Carey, a T. Rowe Price Vice President who was knowledgeable about the European investment community and who had contacts with some of NFFII’s investors. While in California and again during a later trip to New York, Carey telephoned several of the fund’s limited partners for the purpose of determining the degree of investor dissatisfaction. Diamond was informed about Carey’s contact with NFFII clients after Mathias’ return to Baltimore on January 15th or 16th. Carey reported the substance of his phone calls to the Management Committee, stating that some investors were displeased with the fund’s management and performance. The Management Committee determined that Mathias and Carey should travel to Europe and meet the investors personally. According to Mathias, the purpose of the trip was to determine whether the investors were interested in continuing with the fund as structured or whether they wished to amend the redemption provisions of the Private Placement Memorandum to permit liquidation. In February 1992, Mathias told Diamond that he and Carey would interview some of NFFII’s investors in Europe. Diamond’s request to accompany Mathias and Carey on their European trip was refused. At oral argument, counsel for T. Rowe Price represented that the firm believed that investors would be more candid about their concerns without Diamond present. Diamond asserts that the trip had an ulterior purpose: to market another T. Rowe Price fund to NFFII’s investors in an effort to engineer the liquidation of NFFII and force the resignation of Diamond. This fund, the Strategic Partners Fund, was headed by David Warnock, another Vice President at T. Rowe Price. The plan, Diamond contends, was to give NFFII investors the impression that her fund was being poorly managed, prompting them to withdraw their money and invest in Strategic Partners. Diamond also contends that T. Rowe Price, by engineering the liquidation of NFFII, aimed to force her to resign. During oral argument, Diamond’s counsel asserted that the efforts of Mathias, Carey, and Warnock amounted to a “conspiracy.” There is no evidence in the record of such a conspiracy, however. Mathias, Carey, and Warnock testified without contradiction that they made no effort either to market Strategic Partners to NFFII investors or to persuade NFFII investors to withdraw, liquidate, or redeem their shares. The deposition testimony of the European investors fully supports their testimony. Only once did Warnock, who was coincidentally on a marketing trip of his own in Europe, meet an NFFII investor. One night when Mathias, Carey, and Warnock were staying in the same hotel, Mathias asked Warnock to join him, Carey, and Richard Martin of Capital House Investment Management Limited for dinner. On deposition, Martin testified that Warnock joined the dinner group only after the discussions about NFFII had concluded. Diamond produced no evidence that Mathias and Carey attempted to sell Strategic Partners to Martin. Carey stated on deposition that the name of Warnoek’s fund may have arisen in passing during the dinner conversation. A token reference to the work of a dinner companion, however, demonstrates polite manners and natural curiosity more than any conspiracy theory. In fact, Martin was never telephoned by Warnock nor sent any information about investing in Strategic Partners. Diamond also claims that, during the European trip, Mathias and Carey offered Anthony Pike, another NFFII investor, the opportunity to swap his NFFII investment with an investment in Warnock’s fund. This claim, however, is completely unsupported by any evidence. Pike testified that T. Rowe Price had briefly discussed the possibility of investment opportunities through the firm. Neither David Warnock nor his fund, however, was ever mentioned. Mathias returned from Europe in early March 1992 and reported to the Management Committee. The firm decided that the best way to handle the situation would be to allow the investors themselves to determine whether the fund should continue. Mathias informed Diamond that NFFII investors would be given the opportunity to vote on whether the 5% redemption limitation should be amended to permit liquidation of the partnership. T. Rowe Price prepared proxy materials, which were sent to all NFFII limited partners. The vote was held on March 9th, and the results became official on March 20th. Approximately 90% of the shares voted by the investors were cast in favor of all matters presented, including amending the bylaws to permit a special March 31st redemption without the 5% redemption limitation. NFFII investors also overwhelmingly elected to redeem all shares and withdraw their money from NFFII. Diamond did not report for work on Friday, March 20, or Monday, March 23. On Tuesday, March 24, Diamond came to work and met with Mathias and Lucy Robbins, a staff lawyer for T. Rowe Price who had worked on NFFII legal matters. Robbins informed Diamond that the investors had voted to liquidate the fund. Diamond responded by asking, “What about me?” Mathias then questioned, “What about you?” Diamond countered by saying, ‘What about me? This is constructive discharge.” Robbins then replied, “Go talk to Andy Goresh.” Diamond was then asked whether she wanted to assist in the fund’s liquidation, a process that would involve several weeks of work. Diamond replied said that she wanted some time to consider the proposition. Diamond, however, left work on that day and never returned. Later that same day (March 24, 1992), Diamond filed a charge of gender and religious discrimination with the EEOC. Specifically, Diamond alleged discriminatory wages and discharge as well as failure to be promoted. Diamond filed her first complaint in this Court on April 16, 1992, alleging violations of the Equal Pay Act. The EEOC issued a right to sue letter dated June 2, 1992. In it, the agency stated that the EEOC had terminated any further processing of Diamond’s charge and would not conduct an investigation. In June 1992, Diamond filed an amended complaint in this Court, adding Title VII allegations to the Equal Pay Act claims. The Court authorized Diamond to proceed on the amended complaint in July 1992. On August 13,1993, the Court ordered the plaintiff to modify her two-count complaint to reflect this Court’s prior rulings on other motions for summary judgment filed by the defendant. The Court had already ruled that the claims in Count I alleging violations of the Equal Pay Act were limited to compensation received up to three years prior to April 16, 1992, the date on which this instant case was filed. Additionally, the Court had already ruled that the claims in Count II alleging violations of Title VII were limited to (1) failure to be promoted to Managing Director, (2) unequal pay received up to two years prior to March 24, 1992, the date Diamond filed her EEOC charge, and (3) Diamond’s alleged constructive discharge on March 24, 1992. The Court now addresses the several summary judgment motions filed by both parties. III. DISCUSSION A. Standard for Summary Judgment Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). That is, Rule 56 mandates the entry of summary judgment against a party who, after reasonable time for discovery and upon motion, “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. “[A] complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial[,] [and] [t]he moving party is ‘entitled to judgment as a matter of law.’ ” Id. at 323, 106 S.Ct. at 2553 (citations omitted). The moving party bears the burden of demonstrating the absence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). In determining whether there is a genuine issue of material fact, the Court must view the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir.1985). If the evidence favoring the non-moving plaintiff is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Unsupported speculation is insufficient to defeat a motion for summary judgment. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986)). Moreover, the mere existence of some factual dispute is insufficient to defeat a motion for summary judgment; there must be a genuine issue of material fact. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. Material factual disputes are “genuine” only if a reasonable jury could return a verdict for the non-moving party based upon the record as a whole. Id. at 248-49, 106 S.Ct. at 2510-11. “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be .insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Id. at 252, 106 S.Ct. at 2512. The Court must determine whether, when viewing the evidence in the light most favorable to the non-moving party, “a fair-minded jury could return a verdict for the [non-movant].” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. With these principles in mind, the Court will first decide summary judgment as to the three claims in the second amended eomplaint. The Court will then consider summary judgment as to the six-count amended counterclaim. B. Compensation Discrimination Diamond alleges compensation discrimination under both the Equal Pay Act (the “EPA”) and Title VII. The analysis of such a claim under either statute is similar but not identical. The EPA targets gender-based compensation discrimination exclusively, while Title VII redresses workplace discrimination in general. . That is, whether based on gender, race, religion, or national origin, a Title VII claim can be used to challenge discriminatory hiring, promotion, discharge, compensation, or other employment practices. Under the EPA, a prima facie case requires proof (1) that an employer is paying different wages to employees, (2) of the opposite sex, (3) for equal work. 29 U.S.C. § 206(d)(1); Hassman v. Valley Motors, Inc., 790 F.Supp. 564, 567 (D.Md.1992). If the plaintiff establishes these elements, the burden then shifts to the employer to prove that the differential in wages is justified by one of four affirmative defenses. The affirmative defenses are: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quality or quantity of production; or (4) any factor other than sex. 29 U.S.C. § 206(d)(l)(i)-(iv); Hassman, 790 F.Supp. at 567 (citing Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 324 (4th Cir. 1989)); see also Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 2229, 41 L.Ed.2d 1 (1974). If an employer is unable to establish a defense, then it is liable. The EPA, therefore, establishes a form of strict liability. A plaintiff is not required to prove that the employer consciously decided to pay the plaintiff unequal wages because of her gender. Hassman, 790 F.Supp. at 567. Prior to Supreme Court’s decision in County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), the analysis of a compensation discrimination claim under the EPA and Title VII was identical. EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 340 (7th Cir.1988). In Gunther, however, the Supreme Court held that a plaintiff claiming wage discrimination under Title VII need not satisfy the EPA’s “equal work” requirement in order to establish a prima facie violation. 452 U.S. at 181, 101 S.Ct. at 2254. Otherwise, “a woman who is diseriminatorily underpaid could obtain no relief — no matter how egregious the discrimination might be — unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay.” Id. at 178, 101 S.Ct. at 2252. That is, “if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress____” 452 U.S. at 178-79, 101 S.Ct. at 2252. In this ease, the Court need not decide whether Diamond has established a prima facie case of compensation discrimination under either the EPA or Title VII because two of the four affirmative defenses, which apply equally to both statutes, preclude Diamond’s compensation discrimination claim altogether. See 42 U.S.C. § 2000e-2(h); Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); Brewster, 788 F.2d at 991-92. These two affirmative defenses are: (1) quality/quantity of production and (2) factor other than sex. A compensation system qualifies for the affirmative defenses of quantity/quality of production or factor other than sex if the employer determines bonuses, commissions, or salaries according to performance-based or other objectively verifiable criteria. The following cases applying these affirmative defenses are instructive: Commissions were paid to employees according to a standard rate. Schutz v. Western Publishing Co., 609 F.Supp. 888 (N.D.Ill.1985). Salary levels were based on revenue of district (quantity of production); a merit and seniority system determined salaries within each level; entire system also entitled to factor other than sex defense. Brownlee v. Gay & Taylor, Inc., 642 F.Supp. 347 (D.Kan.1986), aff'd, 861 F.2d 1222 (10th Cir.1988). Management Incentive Program determined bonuses according to each manager’s quarterly profit/loss report. Bullock v. Pizza Hut, Inc., 429 F.Supp. 424, 430-31 (M.D.La.1977). Wage differential between two employees justified because one employee had greater work experience than the other. EEOC v. Aetna Ins. Co., 616 F.2d 719 (4th Cir. 1980). Pay differential was justified because of greater skill, responsibility, experience, and qualifications. Hassman v. Valley Motors, Inc., 790 F.Supp. 564 (D.Md.1992). Before analyzing Diamond’s claim, it is necessary to state the precise nature of her complaint. Diamond concedes that the 1985 and 1989 Agreements were valid employment contracts that she voluntarily signed after arm’s length bargaining over the contractual terms. She does not allege that her stated annual salary under the Agreements was discriminatory. Diamond also concedes that T. Rowe Price correctly calculated and remitted her carried interest and incentive bonus payments under the contracts. Diamond’s sole contention is that her employer failed to exercise its discretion to award her additional compensation. Had she been a Gentile male, Diamond alleges, T. Rowe Price would have granted her stock options and larger annual bonuses. Diamond’s claim fails as matter of law. As an initial matter, it is contrary to the concept behind the 1985 and 1989 Agreements. Before the 1985 Agreement, as previously discussed, Diamond was compensated under T. Rowe Price’s standard system. Upper echelon employees such as Diamond received an annual salary as well as stock options and an annual bonus as determined by T. Rowe Price’s Management Committee. Diamond considered this system an anachronism within the investment industry because her pay was not linked to performance-based criteria. She also believed that this system, which vested discretion in the firm’s Compensation Committee, discriminated against her as a Jewish female. Diamond, therefore, bargained for the carried interest and incentive bonus structure incorporated in the 1985 and 1989 Agreements. Diamond stated on deposition that by doing so she “led [T. Rowe Price] from the dark ages into the real investment world,” thereby contributing to the “modernization” of T. Rowe Price. In a letter to the Management Committee dated March 29, 1985, Diamond wrote that, “[r]egarding the issue of incentive compensation, the intent is to provide a mechanism whereby my incentive compensation (which I see representing the majority of my total compensation) would be linked to the New Frontier’s Fund’s performance.” She suggested “reducing or freezing [her] salary at current levels.” Additionally (and perhaps most significantly), Diamond stated that she “would expect little or no bonus on an annual basis for the life of the New Frontier Fund.” Thus, Diamond’s goal was to move away from a subjective compensation system into an objective one. The 1985 and 1989 Agreements accomplished this goal through a formula that determined her income by the absolute growth of the funds under her management (the carried interest) and the relative performance of her funds against the Lipper Universe. These payments were to be calculated and awarded upon the liquidation of each fund. Diamond’s claim also contradicts the clear and unambiguous language of the contracts she signed. Neither compensation package entitled Diamond to annual bonuses or stock options. To the contrary, the 1985 Agreement unequivocally states that T. Rowe Price “shall not be obligated to award to [Diamond] any cash bonus, stock bonus or other benefits involving the stock of [T. Rowe Price] except as specifically in the Agreement.” During negotiations on the 1989 Agreement, Diamond requested a revision of the annual bonus provision. Diamond testified that her “hope” was that T. Rowe Price would award her stock options and “substantial” annual bonuses if she “did a really good job with the fund, if [she] hit a home run, hit the cover off the ball, however - you want to say it, beat the indices.” The 1989 Agreement states that T. Rowe Price “shall, from time to time, consider awarding [Diamond] cash bonus[es], stock bonus[es] and other benefits involving the stock of Price Associates, provided, however, that this sentence shall not obligate Price Associates to make any such awards, except as specifically provided in the Agreement.” Although not obligated to do so, T. Rowe Price opted to award Diamond annual bonuses of $25,000 in both 1989 and 1990, but she received no annual bonus in 1991. She received no stock options during any of the years covered by the 1985 and 1989 Agreements. Diamond cannot base her unequal wage claims on the failure to receive compensation that she had no right to receive. Any expectation to the contrary is simply unreasonable and contradicts the express language of the Agreements. That Diamond did not receive stock options or greater annual bonuses shows only that T. Rowe Price exercised its contractual right not to award them. Having removed herself from the standard compensation scheme by proposing that she receive “little or no annual bonus,” Diamond cannot now complain that the inherent risk in her performance-based agreements constituted unequal pay. Additionally, Diamond’s expectation of large annual bonuses and stock option awards is unrealistic. Under both the 1985 and 1989 Agreements, Diamond’s compensation was “back-end loaded.” Likewise, T. Rowe Price also expected to receive the bulk of its income upon the termination of each fund. In this respect, NFFI and NFFII differed from T. Rowe Price’s mutual funds and private accounts. With regard to the latter, the firm is paid an annual fee based primarily on .the amount of assets under management. Thus, the company knows, year to year, the performance of the portfolio or fund and the income derived therefrom. Fees gained in any given year cannot be wiped out by losses in later years. Not so, however, with Diamond’s funds. T. Rowe Price’s profits in NFFI existed only on paper until the fund was liquidated in 1989. NFFII’s substantial gains in 1989 and 1990 were entirely obliterated in 1991, and the fund was liquidated at a loss. To bestow interim annual bonuses on Diamond before fund liquidation, T. Rowe Price would have been forced to guess as to the ultimate success of the fund. As the history of NFFII demonstrates, such an estimate would have been speculative at best and might have resulted in unjustified bonuses awarded to Diamond. The firm might expect her to remit any overpayments. Diamond never suggests that she would have been under such an obligation, however. Diamond also alleges that 11 male money managers at T. Rowe Price received more compensation than she did for substantially equal work. Diamond’s allegation is irrelevant because it does not defeat the affirmative defenses which demonstrate that any differential between her salary and her comparators’ salary is attributable to non-discriminatory factors. Nevertheless, the Court will address the merits of her contention. Diamond’s claims fails because she actually received more compensation than her alleged comparators. In 1989, Diamond received — in addition to an annual base salary of $130,-000 — an incentive bonus of $555,446, a carried interest payment of $439,386, and a $25,-000 annual bonus. Annualized over NFFI’s five-year life from 1985 to 1989, Diamond’s compensation" averaged approximately $324,-966. The average compensation of Diamond’s comparators for the same period, according to information supplied by Diamond’s statistical expert James Johnston, was slightly less ($324,356). Even if calculated over different periods of time, Diamond’s compensation still exceeded that of her comparators. From 1986 to 1991, the compensation of Diamond’s alleged comparators was $316,746, whereas Diamond’s compensation was $366,768. From 1989 to 1991, their average compensation was $357,-019, and Diamond’s was $542,386. That Diamond’s compensation, from 1990 to 1991, averaged less than the compensation of her comparators is attributable entirely to the poor performance of NFFII during those years. Moreover, because the mechanisms for determining the compensation of Diamond and her comparators are substantially dissimilar, the 11 males are not Diamond’s true comparators. Under Diamond’s Agreements, fund performance — not the subjective evaluations of the Compensation Committee — determined the size of Diamond’s incentive bonus and carried interest payments. No other T. Rowe Price employee, male or female, had a similar performance-based compensation agreement. Diamond contends that the mere existence of a wage agreement does not preclude her claim of compensation discrimination. She relies primarily on Dean v. United Food Stores, Inc., 767 F.Supp. 236 (D.N.M.1991). Dean, however, is inapposite. In Dean, the defendant employer, a franchisor of convenience stores, had a policy of exclusively hiring husband and wife management teams. Although the husbands and wives of each team were considered “co-managers,” wives received minimum wage while husbands were paid on a commission basis. Each team signed written agreements that set out pay and duties. The plaintiff, Mrs. Dean, and her husband were hired to supervise a store in New Mexico. Both Mr. Dean and his wife performed the same tasks and had the same responsibilities, but their compensation was unequal. Under the standard contract, Mr. Dean received a commission based on the store’s sales, but Mrs. Dean was paid $300 every two weeks. Over the course of two years’ employment, the pay differential amounted to $47,000. Finding that Mr. and Mrs. Dean performed “substantially equivalent work,” id. at 241, the court concluded that the store had violated the EPA and ruled in favor of the plaintiff. Dean stands for the proposition that the mere existence of a wage agreement cannot be considered a “factor other than sex” if the contract embodies pay differentials which would themselves violate the Equal Pay Act or Title VII. Anderson v. University of N. Iowa, 779 F.2d 441, 444 (8th Cir.1985). While the Court endorses this legal proposition, Dean is inapposite here. Diamond’s unique, negotiated, performance-based agreements simply cannot be compared to the contract at issue in Dean. In sum, Diamond’s 1985 and 1989 Agreements constituted performance-based compensation systems that tied Diamond’s pay to the objective performance of NFFI and NFFII. If, as was the case with NFFI, the portfolio earned money, so did Diamond. If, as was the case with NFFII, the portfolio lost money, Diamond was entitled to receive nothing more than her annual base salary of $130,OOO. Thus, Diamond’s Agreements qualify as compensation systems based on quality/quantity of production and also on factors other than sex. No reasonable jury could conclude otherwise. Accordingly, T. Rowe Price’s motion for summary judgment on Diamond’s compensation discrimination claim under the Equal Pay Act and Title VII shall be granted by separate order. C. Constructive Discharge Diamond was not fired. She left work on March 24, 1992 and refused to return. Thus, her claim falls in the category of construetive, as opposed to actual, discharge, In deciding whether an employee must actually be fired in order to bring a suit for discriminatory discharge, the courts have struck a balance among the policies behind Title VII, the concerns of the employer, and the interests of the employee. On the one hand, an employee should not be expected to endure intolerable work conditions. On the other hand, an employer should be protected from discharge suits when the employee leaves of her own accord. An employee may assert a constructive discharge claim only by demonstrating that the employer deliberately made work conditions so intolerable that no reasonable person would have remained on the job. This rule serves the strong legislative policy in favor of the employee’s remaining on the job while her claim is being investigated by the EEOC or litigated in the courts. As one court has stated, the standard remedy under Title VII is “to stay and fight.” Halbrook v. Reichhold Chemicals, Inc., 735 F.Supp. 121, 127 (S.D.N.Y.1990). To promote this goal of mediating discrimination claims within the context of continued employment, federal law strictly prohibits any form of retaliation against an employee who has ^ed a discrimination claim. Thus, an employee is not permitted to leave work simply because she alleges discrimination in the workplace. As a matter of law, a constructive discharge occurs when “an employer deliberately makes an employee’s working conditions intolerable and thereby forces him to quit his job.” Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (1985) (citations omitted), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). Accord Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir.1993), petition for cert. filed, 62 U.S.L.W. 3149 (U.S. Aug. 16, 1993) (No. 93-248); EEOC v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992). The Fourth Circuit has cautioned that constructive discharge claims must be “carefully cabined” by district court judges because “the claim of constructive discharge is so open to abuse by those who leave employment of their own accord.” Paroline v. Unisys Corp., 879 F.2d 100, 114 (4th Cir. 1989) (Wilkinson, J., concurring in part and dissenting in part), adopted en banc, 900 F.2d 27, 28 (4th Cir.1990). A plaintiff alleging constructive discharge must prove two elements: (1) deliberateness of the employer’s actions and (2) intolerability of the working conditions. Bristow, 770 F.2d at 1255; Johnson v. Shalala, 991 F.2d at 131. The first element, deliberateness, “can be demonstrated by actual evidence of intent by the employer to drive the employee from the job, or circumstantial evidence of such intent, including a series of actions that single out a plaintiff for differential treatment.” Johnson v. Shalala, 991 F.2d at 131. The second element, intolerability, “is assessed by the objective standard of whether a ‘reasonable person’ in the employee’s position would have felt compelled to resign.” Bristow, 770 F.2d at 1255. In deciding the instant motion, the Court focuses primarily on the intolerability prong of the two-part test and concludes that Diamond has not proffered sufficient evidence that her work conditions were intolerable. Because Diamond has failed to make such a showing, she has not created an issue of material fact that would preclude summary judgment. The case law, from this circuit and others, defining intolerable work conditions is instructive. The hallmark of such cases is egregious personal harassment, especially sexual or racial in nature: (1) Employer falsely accused plaintiff of stealing from company, told her that she would be replaced by a male, and asserted that she did not “fit the mold” because she was a woman. Levendos v. Stern Entertainment, Inc., 860 F.2d 1227 (3d Cir. 1988); (2) Company knew plaintiff was being racially harassed but did nothing. Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir.1984), cert. denied, 470 U.S. 1028 [105 S.Ct. 1395, 84 L.Ed.2d 784] (1985). (3) Employer incessantly asked plaintiff when he would resign, demanded that he train his young successor, required him to explain his demotion to the company’s biggest client, and asked him to introduce the young successor to that client. Stephens v. C.I.T. Group/Equipment Fin. Co., 955 F.2d 1023 (5th Cir.1992); (4) Supervisor referred to women as “broads,” purposely created a false record to denigrate the plaintiff, and eliminated all of her job duties. Scott v. Oce Indus., Inc., 536 F.Supp. 141 (N.D.Ill.1982); (5) Supervisor verbally abused plaintiff in front of other employees, told her she had no future with the company, and ordered her to do illegal things. Thomas v. Cooper Indus., Inc., 627 F.Supp. 655 (W.D.N.C. 1986). Diamond admits that no one at T. Rowe Price was hostile, personally abusive, or even discourteous to her. She also admits that no one ever asked her to resign or even mentioned resignation. To the contrary, two senior executives at T. Rowe Price, Roche and Riepe, encouraged her to remain at the company despite the poor performance of NFFII. Diamond does not allege any overt instance of sexual harassment, anti-Semitism, or misogyny by anyone at T. Rowe Price. Indeed, the individuals she accuses of discrimination are the same persons who worked with her amicably for over a decade. In Diamond’s view, her principal antagonist was Mathias. Yet he gave her unfettered discretion to manage the affairs of NFFI and NFFII and interpolated himself only when the poor performance of the second fund became apparent. Indeed, in both newspaper articles and letters to prospective clients, Mathias praised Diamond as “an absolutely gifted investor.” Additionally, in 1991 and 1992, T. Rowe Price was enjoying a period of prosperity and expansion. ■ Diamond has proffered no evidence of “downsizing” at the firm that would motivate T. Rowe Price to engineer her departure. Diamond correctly observes that T. Rowe Price did not inform her what her postNFFII assignment would be. After a conversation with Riepe, in which he stated his hope that she would “stay on in some capacity,” Diamond expressed in her diary a doubt that a mutually satisfactory position could be negotiated. Yet Diamond never sought to negotiate for a new project or pursue a new assignment; she left work before NFFII was liquidated. Nevertheless, Diamond maintains that T. Rowe Price intended to force her to resign. She cites a series of incidents taken by T. Rowe Price with respect to NFFII which, when viewed as a whole, allegedly made her working conditions intolerable. The Court reviews these incidents in light of a recent Fourth Circuit decision: Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989), affirmed in part and reversed in part en banc, 900 F.2d 27 (4th Cir.1990). Paroline stands for the proposition that summary judgment may be granted in a constructive discharge ease even though the employer’s intent is at issue. Paroline also teaches that in order to raise a question of material fact, intent to discharge must be fairly inferable from the challenged incidents. The incidents must also have rendered the job objectively intolerable to a reasonable person. In that case, the plaintiff, Elizabeth Paroline, complained to her employer Unisys Corporation that a male co-worker, Edgar Moore, was sexually harassing her. Moore made sexually suggestive remarks to Paroline at work and rubbed his hands on her back. When a severe snowstorm hit the area and the office closed early, Paroline had no way home and reluctantly accepted a ride from Moore. During the trip, Moore kissed Paroline and tried to hold her hand, all against her wishes. Upon arriving at Paroline’s apartment, he insisted on coming inside. Once in Paroline’s apartment, Moore began kissing her and rubbing his hands on her back. Although Moore initially refused to stop, Paroline finally persuaded him to leave. The next morning, Paroline reported the incident to her supervisor, and Unisys launched a formal investigation. As the investigation revealed, other female employees at Unisys had previously complained of Moore’s unwelcome verbal and physical advances. The company disciplined Moore. Unisys formally warned him that he would be terminated if such an incident occurred again. Moore was required to seek psychiatric counselling. His planned promotion and salary increase were delayed. Moore was directed to limit his contact with female employees to official business. A written memorandum setting forth the conditions of his continued employment was placed in his personnel file. Further, following Paroline’s recommendation, Unisys withdrew Moore’s access to a high security area where Paroline was to work after she obtained her own security clearance. This action temporarily increased Paroline’s contact with Moore, but there was no evidence of any further incidents. Paroline considered these measures inadequate, fearing, based on Moore’s history, that he would harass her again. Knowing that Paroline was dissatisfied, the company offered her two weeks of vacation, urged her not to quit, and offered to pay for counsel-ling. Paroline resigned anyway and filed a Title VII suit alleging sexual harassment and constructive discharge. The trial court granted summary judgment for Unisys on the constructive discharge claim, but, in a 2-1 decision, a panel of the Fourth Circuit reversed the lower court’s ruling. According to the majority, a reasonable fact finder could conclude that Unisys’ method of disciplining Moore was in actuality the ploy of a “clever or sophisticated employer” calculated to force Paroline to resign. Id. at 114. Under this theory, Unisys might have intended to make Paroline’s work conditions intolerable by increasing the risk of contact between her and Moore at a point when Paroline wished to avoid Moore altogether. Judge Wilkinson dissented, stating that if “a claim this thin is one for the trier of fact, it is hard to imagine any claim of constructive discharge on which summary judgment would be appropriate.” Id. at 115. He concluded that “the company’s actions here reflect the opposite [of an intent to force the plaintiff to resign]; Unisys actively took action to improve Paroline’s conditions of employment.” Id. In a subsequent rehearing en banc, the Fourth Circuit reversed and adopted Judge Wilkinson’s reasoning. 900 F.2d 27, 28. One may assign an improper motive from almost any employment decision that an employee finds unacceptable. Under Paroline, however, a claim may survive summary judgment only if intent to discharge is fairly inferable from the challenged incidents and if working conditions are objectively intolerable. The actions challenged by Diamond do not satisfy either requirement. Each was a facially reasonable business response to the problems of NFFII’s poor performance in 1991. The courts, which exist to redress discrimination, have no jurisdiction to resolve differences of opinion over the wisdom of management decisions. EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir.1992) (“It is not for this court or any other governmental agency to direct the business practices of any company____ It is not the purpose of the EEOC nor the function of this court to second guess the wisdom of business decisions.”). The Court shall now address the challenged actions seriatim. 1. Restricting Increases in NFFII’s Net Short Position In early January 1992, Mathias ordered Diamond not to increase the net short position of NFFII’s portfolio. No inference of discrimination can legitimately be drawn from his decision. Diamond’s extensive shorting of the fund’s portfolio had resulted in heavy losses in 1991, while other “small cap” funds were enjoying a banner year. The extensive shorting had generated corn-plaints from NFFII’s investors and was contrary to the investment objectives stated in the fund’s governing documents. Despite Mathias’ order, Diamond retained control over NFFII’s portfolio and could buy and sell stock as she wished so long as the net short position of the fund’s portfolio was not increased. 2. Ordering Diamond Not to Send Draft Letter In early January 1992, in response to Mathias’s order not to increase NFFII’s net short position, Diamond circulated the draft of a letter she proposed sending to the fund’s investors. In the sixth paragraph of the draft letter, Diamond wrote that, “[a]t this point, the Fund’s portfolio is no longer being actively managed by me.” She stated that “portfolio management decisions are no longer mine.” Thus, she concluded, “the performance of 1992 will not reflect a portfolio as I would structure it at this point.” Upon receipt of the draft letter, Collins, the CEO of T. Rowe Price, immediately sent to Diamond a memorandum directing her not to mail the draft and ordering her not to contact her clients without prior approval. As Diamond concedes, Collins was concerned that the draft letter might increase public relations problems with NFFII’s investors. Mathias also believed that, coupled with NFFII’s poor performance in 1991 and 1992, Diamond’s letter was unprofessional and might engender, at the least, unnecessary friction between T. Rowe Price and investors. Collins’ order was a reasonable response to Diamond’s draft letter, which aired a professional dispute between Diamond and her employer over NFFII’s investment strategy. Approximately ten days later, Diamond’s letter, minus the three offending sentences, was sent to investors. 3.Contacting NFFII Investors Faced with NFFII poor performance and potential client relations problems, the firm’s Management Committee decided to contact many of NFFII’s limited partners to ascertain the level of investor dissatisfaction. The Committee determined that