Allen v. Diebold, Inc., 5:91 CV 2450.

• Decision Date: 24 November 1992
• Docket Number: No. 5:91 CV 2450.,5:91 CV 2450.
• Citation: 807 F. Supp. 1308
• Parties: Glenn ALLEN, et al., Plaintiffs, v. DIEBOLD, INCORPORATED, Defendant.
• Court: U.S. District Court — Northern District of Ohio

807 F. Supp. 1308

Glenn ALLEN, et al., Plaintiffs, v. DIEBOLD, INCORPORATED, Defendant.

No. 5:91 CV 2450.

United States District Court, N.D. Ohio, E.D.

November 24, 1992.

Jeffrey H. Friedman, Friedman, Domiano & Smith, Cleveland, OH, for plaintiffs.

Roger A. Weber, Frederick H. Burton, Taft, Stettinius & Hollister, Cincinnati, OH, Gust Callas, Black, McCuskey, Souers & Arbaugh, J. William Sekula, Diebold, Inc., Canton, OH, for defendant.

ORDER

SAM H. BELL, District Judge.

I. INTRODUCTION

Currently before the court are numerous motions, filed by the defendant, for dismissal or for summary judgment. The defendant seeks judgment on both the federal ADEA claims and, as well, the pendent claims advanced in plaintiffs' complaint. While the first dispositive motion was filed early this year, since that time, amended pleadings have necessitated the filing of additional and supplementary briefs and motions. Because all these documents speak to the issues at hand, they are here considered in full, for the purposes of ruling upon the motion entitled "Defendant Diebold, Incorporated's Motion for Summary Judgment on the First Amended Complaint as to Each Plaintiff on all Counts," Docket # 57. All parties to this action have requested and engaged in a similar analysis. (See Defendant's Motion at 1 ("Defendant relies on the entire record in the case ..."); Plaintiff's Opposition at 1 ("plaintiffs rely on the entire record in this case....")). Because a large portion of defendant's motion is grounded in the plaintiffs' purported failure to adhere to ADEA's guidelines requiring the filing of administrative claims within 300 days, it is beneficial to recount the uncontested facts surrounding the administrative claims process, the bare facts leading to this suit, and the nature of plaintiffs' complaint.¹

II. BACKGROUND

The sixty-two plaintiffs named in the complaint are all former employees of the defendant, Diebold Incorporated. Diebold, employing some 4,000 people world-wide, is widely known for its manufacture of the automated teller machine and other products.

Fifty-two of the plaintiffs in the instant action were employed at Diebold's manufacturing plant in Canton, Ohio. All but two of these plaintiffs were members of a local collective bargaining unit (Boilermakers Lodge 1191) and the terms of their employment and layoff procedures were governed by a collective bargaining agreement. The remaining ten plaintiffs were employed at Diebold's manufacturing facility in Hamilton, Ohio. All ten were members of the Safeworkers Union and were subject to a separate collective bargaining agreement.

On October 2, 1989, Diebold formally announced to all Canton employees that it would commence restructuring and relocation operations, resulting in the reduction of employment at the Canton facility by some 300 persons. This restructuring included the establishment of a new automated facility in Lynchburg, Virginia. The Canton plaintiffs' union and the media were informed of the Lynchburg plant's location in November of 1989. (Schissler Aff. at para. 8) In Autumn and early Winter 1989, the Canton workers scheduled for layoff, including plaintiffs, were given notice of their imminent departure pursuant to the Worker Adjustment and Retraining Notification Act ("WARN"). The notice stated that "the termination described below will be permanent." (Diebold's First Motion for Dismissal, Docket # 12, Exhibit 4 at 1) Layoff of the Canton plaintiffs began in January 1990 and continued for some time thereafter. The defendant began hiring new employees for its Lynchburg, Va. facility at the same time. Following their termination, none of the Canton plaintiffs filed a charge with the EEOC within 300 days of the October 2, 1989 announcement or within 300 days of the WARN announcement. (Schissler Aff. at para. 18) In addition, none of the Canton plaintiffs except David Rusu filed an EEOC charge within 300 days of the effective date of his or her layoff. Mr. Rusu voluntarily subjected himself to layoff by resigning his position as steward with rights to super seniority status. (Diebold's First Motion for Dismissal, Docket # 12, Exhibit 9) The Canton plaintiffs' EEOC charges were dismissed on the merits.

In April of 1990, Diebold informed employees and the Hamilton union that it would be reducing the workforce at its Hamilton facility and was opening a new factory in Sumter, South Carolina. Later that month, the Hamilton union requested "effects" bargaining over the relocation. The union and the company engaged in such bargaining. Diebold began hiring employees in Sumter in July of 1990. Diebold informed the union and Hamilton employees at a meeting on October 2, 1990, confirmed by letter dated October 12, 1990, that Diebold would cease all manufacturing operations at the Hamilton facility by the third of fourth quarter of 1991. The union and the defendant entered into a plant closure agreement on November 19, 1990. That agreement specifically notes that the union was informed of Diebold's decision to close the Hamilton plant on October 2, 1990. All of the Hamilton plaintiffs filed charges with the EEOC well in excess of 300 days after the plant closure notice. (E.g., Diebold's Supplemental Motion to Dismiss, Exhibits 4-10) All EEOC charges filed by the Hamilton plaintiffs were dismissed on the merits.

The initial complaint in this matter was filed by thirty-eight of the plaintiffs on December 4, 1991. By way of amended complaint the original and additional plaintiffs bring five claims. The first count alleges that the defendant, by its lay-off actions, constructively discharged plaintiffs and that it replaced the plaintiffs with younger individuals from South Carolina and Virginia in violation of Section 4(d) of the ADEA, 29 U.S.C. Section 623(d). The second count alleges that the defendant's alleged discrimination in violation of the ADEA was willful or in reckless disregard of the Act. Plaintiffs also bring three pendent claims, to wit: negligent infliction of emotional distress, intentional infliction of emotional distress and violation of Ohio Revised Code Section 4112.99.

III. STANDARD OF REVIEW

In reviewing a motion for summary judgment, a court must consider the pleadings, related documents, evidence, and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). Rule 56 provides, in relevant part, as follows:

(c) ...

The judgment sought shall be rendered forthwith if 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.

. . . . .

(e) ...

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Three Supreme Court cases have provided guidance as to the nature of the respective burdens allocated under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The ultimate burden lies with the non-moving party to show the existence of a genuine issue of material fact. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts ... In the language of the Rule, the non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.' Fed.Rule Civ.Proc. 56(e)." Matsushita, 475 U.S. at 586-587, 106 S.Ct. at 1356 (emphasis supplied). "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The court in Anderson held that "the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.

On the other hand, the moving party's burden under Rule 56 is lighter.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c) ... suggests the absence of such a requirement.

Celotex, supra, at 323, 106 S.Ct. at 2552 (emphasis supplied).

The Sixth Circuit Court of Appeals, in Street v. J.C. Bradford and Co., 886 F.2d 1472 (6th Cir.1989) recently reviewed court decisions and commentary regarding the impact of Anderson, Celotex, and Matsushita on summary judgment practice. The court concluded that a "new era" in summary judgment practice has opened...