Brink v. Union Carbide Corp.
| Decision Date | 18 February 1999 |
| Docket Number | No. 93 CIV. 2500(RO).,93 CIV. 2500(RO). |
| Citation | 41 F.Supp.2d 406 |
| Parties | Donald W. BRINK, plaintiff, v. UNION CARBIDE CORPORATION, defendant. |
| Court | U.S. District Court — Southern District of New York |
Wisehart & Koch, New York, New York by Arthur M. Wisehart, for Plaintiff, Donald W. Brink.
McDermott, Will & Emery, New York, New York by Joel E. Cohen, Julie Y. Chen, Nancy Solomon Weiss, for Defendant, Union Carbide Corporation.
Plaintiff Donald W. Brink, terminated by his employer Union Carbide Corporation, alleges (1) employment discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), the New York State Human Rights Law, N.Y. Exec. Law § 296(3-a)(a), and the Connecticut Human Rights and Opportunities Act, Conn. Gen.Stat. § 46a-60(a)(1); (2) a violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1140; and (3) breach of contract for employment during worklife expectancy. Carbide disputes this, asserting that Brink was an at-will employee whose termination occurred during a major, prolonged down-sizing and was arrived at by ranking the entire 15-member unit on the basis of abilities without reference to age. Carbide moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
On November 22, 1976, Carbide hired Brink, then 43 years old, to work at Carbide's New York City office as a Business Intelligence Analyst in its Chemicals & Plastics division. Brink and Carbide signed a Memorandum of Employee's Agreement, which stated "THIS AGREEMENT does not, of course, bind either party to a specific period of employment." Brink was a participant in Carbide's pension plan, with pension benefits flowing from a combination of the employee's salary, years of service, and age.
Brink was promoted to Senior Project Administrator in 1978. In 1979, he was transferred from the Chemicals & Plastics division to an overall corporate level and was promoted to Staff Assistant for Investor Relations. In 1981, Brink was transferred to the corporate Financial Planning & Analysis group ("FPA"), located at Carbide's Danbury, Connecticut headquarters and Brink moved his home to Connecticut. There, he held the position of Senior Analyst.
In 1985, Carbide began a lengthy restructuring in which it sold or spun off numerous divisions, such as home, automotive and battery. This greatly reduced its need for financial analysts. Controlling interests in other divisions, such as Carbon Products, were also sold. In 1985, Brink was offered a voluntary separation program, which he refused. By 1990, only two divisions remained: Chemicals & Plastics and Industrial Gases (known as Linde). At that point, corporate FPA was consolidated with the FPA from the Chemicals & Plastics division, resulting in one FPA group. Brink, who was approximately 57 years old at the time, was retained in the consolidated FPA, and his primary responsibilities became competitive analysis and external reporting. His competitive analysis work, which occupied slightly more than half of his time, included comparing Carbide and its individual businesses "with similar businesses that are in the chemical industries and the oil industry." In 1991, plaintiff's competitive analysis work involved preparation of two different reports, an executive compensation report and a competitive analysis report for Carbide's remaining two businesses. In preparing these reports, Brink was assisted by two other FPA employees, Deanna Gayer and Joe Agresta. Plaintiff's external reporting work, which occupied slightly less than half of his time, included assisting in the preparation of the corporation's annual report, SEC filings and other documents necessary for stockholder disclosure. As the only FPA employee working on external reporting, plaintiff's role involved assisting other departments, such as Carbide's communications law, and corporate accounting departments.
In early 1992, Irving Agard was the director of FPA. Below Agard were four managers, one of whom, Richard Fronapfel, was Brink's immediate supervisor. FPA's hierarchy was as follows:
Irving Agard
Director
Richard Fronapfel Ronald Oliveri Robert Morales Paul Davis
Manager Manager Manager Assistant Dir
Donald Brink (plaintiff) Henry Vega Cindy Chen Deanna Gayer
Analyst Analyst Analyst Financial Assoc
Joseph Agresta Lori Davlos Warren Baudendistel
Analyst Analyst Analyst
Marilyn Posavetz Ralph Racey
Analyst Analyst
The most recent addition to FPA was Lori Davlos, who had been transferred from Carbide's West Virginia office in January of 1992 to do cash-flow analysis.
In 1991, Carbide announced plans to further downsize by spinning off the Industrial Gases division. This would leave it with only one division, Chemicals & Plastic. That announcement, along with internal talk about a $250 million cost-reduction program, led Agard to realize that the size of his department would soon need to be reduced. Accordingly, in early 1992, he set up a plan to have his FPA staff members ranked by their managers.1 This was done on a scale of one to five (with one being the lowest and five being the highest)2 in six categories: ability, effectiveness versatility, value to continuing business, uniqueness, and reassignment potential. Neither age nor seniority were categories. Their ratings in those categories were then totalled. The final ranking was as follows:
Bank Name Rating
1 Lori Davlos 25.3
2 Henry Vega 24.3
3 Ralph Racey 20.7
4(tie) Donald Brink (plaintiff)) 20.3
4(tie) Joseph Agresta 20.3
6 Marilyn Posavetz 18.7
7 Warren Baudendistel 18.0
8 Cindy Chen 17.33
With the ranking completed, Agard did not immediately make any decisions regarding who would be terminated. He first contacted the division controllers and other staff groups to inquire whether they might have openings for any of his staff. Agard had some difficulty here because a number of his FPA analysts (including Brink) were at a higher grade level (14) than analyst vacancies or needs existing in other departments. For instance, Agard described in his deposition the following discussion with Nick Thold in the Investor Relations department:
Nick Thold indicated to me that he had an employee working for him who was a grade 10. The employee wanted to retire and he felt he had to fill the job. He wondered if I had any candidates who were available for that job. I gave him the list of all the candidates that I had which was, in effect, I offered up everybody in my organization and said, you know, are any of these people acceptable to you. He said Don Brink used to work in my organization, I know Don, and he said I would like to talk to Cindy Chen. He talked to her and said she would be perfect for the job, and I said but Don did the job before. He said this is a grade 10 job. He said I think I can add enough to that job to make it a grade 12 but I can never justify a grade 14 on the job.
Thus, Chen was placed with Investor Relations. Similarly, Marilyn Posavetz was placed as a financial analyst with the Industrial Gases division; a manager in that division had "indicated that the highest grade experience they could afford for the job was a grade 12 person". A third FPA staff member, Warren Baudendistel, who did have a Grade 14, was placed with another controller who chose him specifically. This left Agard with five FPA staffers — Davlos, Vega, Racey, Brink, and Agresta, in order of their ranking — along with Deanna Gayer. The expected division-wide reduction in force came to pass in May 1992 as part of a fifty percent cost reduction target for the controller's organization. Agard decided to keep the two top-rated analysts — Davlos and Vega — and to "surplus" Brink, Agresta, and Racey. Gayer and her manager, Davis, were also eliminated. On June 22, 1992, Brink was informed that he was to be terminated, effective August 31. In total, Mr. Agard reduced his staff from 15 to 5 including terminating a manager and an assistant director, leaving the following people of various ages:
I. Agard (45)
R. Fronapfel (53) H. Vega (48) L. Davlos (36) R. Morales (45) This left Carbide, which had had 117,000 employees in 1985, with but 16,000 in mid-1992.4
Notwithstanding the foregoing rather ordinary sequence of events in a lengthy major corporate down-sizing and restructuring, Brink contends that he has stated a prima facie case of age discrimination in his termination.5 He argues that three alleged ultimate fact contentions create material issues supporting the conclusion of discrimination against him by Carbide because of his age. The first is that when the FPA unit was reduced in size, Director Agard found slots elsewhere in Carbide for three younger employees (two aged 51 and one 39), but not for him. Brink's second factual assertion is that the ranking procedure utilized was pretextual and, he contends, "an exercise in deliberate deception."6 The third ultimate factual assertion, which is Brink's main contention, is his assertion that the transfer into FPA of Lori Davlos, a younger employee of unknown skills and little competence, to do work he could have done,7 with a lower grade and salary, (and her retention at and after the time of his termination) is evidence that age discrimination was the motivating factor behind Brink's termination and not the legitimate restructuring which Carbide claims.8
Turning to Brink's first claim [notwithstanding all of his many record references at the top of page 12 of his memorandum], he proffers...
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