Brodsky v. Hercules, Inc.

• Decision Date: 17 June 1997
• Docket Number: Civil Action No. 96-51 MMS.
• Citation: 966 F.Supp. 1337
• Parties: Gregory Isaac BRODSKY, Ph.D., Plaintiff, v. HERCULES, INCORPORATED, Defendant.
• Court: Supreme Court of Delaware

966 F.Supp. 1337

Gregory Isaac BRODSKY, Ph.D., Plaintiff, v. HERCULES, INCORPORATED, Defendant.

Civil Action No. 96-51 MMS.

United States District Court. D. Delaware.

Argued May 1, 1997.

Decided June 17, 1997.

COPYRIGHT MATERIAL OMITTED

Michael J. Ippoliti, of Becker, Becker & Ippoliti, P.A., Wilmington, DE (Alan B. Epstein of Jablon, Epstein, Wolf & Drucker, Philadelphia, PA, of counsel), for Plaintiff.

Michael P. Kelly of Haase & Kelly, Wilmington, DE (Brent E. Zepke, Hercules Incorporated, Wilmington, DE, Michael J. Connolly of Cross Wrock, P.C., Detroit, MI and Clifford J. Scharman of Cross Wrock, P.C., Washington, DC, of counsel) for Defendant.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

I. INTRODUCTION

Plaintiff Gregory Isaac Brodsky ("Brodsky") brought this action against Hercules, Inc. ("Hercules") as a result of his termination from employment in a Reduction in Force Program ("RIF") implemented by Hercules in 1994. In Count I of his complaint, Brodsky alleges violations of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621, et seq. In Count II, Brodsky claims Hercules has violated Delaware public policy as embodied in the DLAD. In Count III, he claims that Hercules breached an implied covenant of good faith and fair dealing. Finally, Count IV contains a claim for intentional infliction of emotional distress. Pending before the Court is Hercules' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a). For the reasons below, Hercules' motion will be granted in part and denied in part.

II. FACTUAL BACKGROUND

A. From Russia with Resins

Brodsky was hired by Hercules, a manufacturer of chemicals and chemical products, as a Senior Research Chemist in 1981. Docket Item ("D.I.") 30 at 58. Brodsky, who was fifty years old at the time, had a wealth of experience in the chemical field; he received his doctorate at the Institute of Fine Chemical Technology and worked for twenty-two years at the Tire Research Institute, both of Moscow, the heart of the then-Soviet Union. D.I. 30 at 12. On his application with Hercules, Brodsky indicated a job as a rubber chemist as his first choice, while a position in polymer material engineering as his second choice. D.I. 30 at 15, 58.

Hercules placed Brodsky in its "Resins Research & Development" group. D.I. 30 at 18. The Resins Research group was partitioned into discrete units referred to as "Labs"; the two relevant units for our purposes were the "Rubber Lab" and "Polymer Fractionation Lab." Brodsky was assigned to the Rubber Lab, where he worked until 1986. D.I. 30 at 21. In the Rubber Lab, Brodsky worked primarily with resins in rubber and tires. D.I. 30 at 19.

Brodsky's work in the Rubber Lab was praised by his supervisor and others who evaluated his work. For example, Brodsky's supervisor, R. William Brody, enthused in 1982 that "[t]he addition of Gregory [Brodsky] to our Rubber Lab has greatly enhanced our capabilities. The expertise he has brought with him cannot be attained by a new man from a University. It can only be learned on the job. He is a valuable asset." D.I. 35 at 31. In 1983, Brody lauded Brodsky's "excellent knowledge of basic polymer physics and his ability to relate those basics to practical problems." D.I. 35 at 33. Brody went on to add "Gregory [Brodsky] is looked up to by everyone in the laboratory and is consulted on most programs[,]" id., and noted Brodsky's desire to "remain in the area of Rubber R & D [shorthand for research and development] and to advance on the technical ladder[,]" D.I. 35 at 34. In 1985, Brodsky was cited for developing an adhesive system with potential for uses with products other than rubber, such as polyester and fiberglass. D.I. 35 at 38.

In 1986, Brodsky was transferred from the Rubber Lab to the Polymer Fractionation Lab. For approximately the next eighteen months, Brodsky was engaged in the polymer fractionation of plastic resins, a field which, as Brodsky puts it, has "[n]othing to do with rubber." D.I. 30 at 20. A 1987 review of Brodsky's performance reveals that, as he did in the Rubber Lab, Brodsky proved capable in polymer fractionation. Daniel Monagle, the Division Manager wrote:

Gregory has made a smooth transition from Rubber group to our polymer fractionation programs — for which we are very appreciative. He is a hard worker — more of a polymer scientist than an analytical chemist. Making valuable contributions to [two different Hercules programs]. More recently has become involved in Kymene/polyelectrolyte fractionation. His approach is indeed that of a mature scientist in that he studies — reads up on literature — gets a good understanding of what's needed and then proceeds in a logical — calculated manner. A valuable Hercules employee....

D.I. 35 at 47 (emphasis added).

After his approximately eighteen-month stint in the Polymer Fractionation Lab, Brodsky returned, at the invitation of a divisional manager and a former supervisor, to the Rubber Lab. D.I. 30 at 20. Brodsky was needed in the Rubber Lab to work on a major tire research project — the so-called "Inner Liner" project. D.I. 30 at 21. While working on the Inner Liner project, Brodsky, along with two other Hercules scientists, developed a patent for a tire innerliner. D.I. 30 at 60. Brodsky again earned rave reviews for his work in the Rubber Lab in 1989 — his division manager labeled him a "top producer," D.I. 35 at 53 — and was deemed "promotable" to a position as Research Scientist within one year. By 1991, however, Brodsky had still not been promoted, despite earning satisfactory performance reviews and eliciting a comment by the manager of the resins division that Brodsky "is ready to be promoted because he is an expert in rubber and tires." D.I. 30 at 57.

B. The Reduction in Force ("RIF") Process

As Hercules moved into the 1990s, it instituted a series of reductions in force ("RIF"s). Employees in the Wilmington Research Laboratory were slashed from a robust 1,000 before 1990 to close to 400 in 1996. D.I. 30 at 86. Worldwide, Hercules retained only 30% of its former employees. D.I. 30 at 37.

To administer the RIF, Hercules developed a written policy. D.I. 30 at 107-111. With an eye toward "retention of the best workforce," Hercules identified the following "criteria for selection of those individuals to be displaced, ... in this order of priority:

"a. Job performance;

"b. Prior experience, including the individual's versatility and flexibility in terms of known and demonstrated performance on other functional responsibilities;

"c. Education applicable to the job;

"d. Relative ability;

"e. Physical limitations to performing a function other than that on which currently assigned (supported by medical documentation);

"f. Adjusted service date/then continuous service;

if all of the above are equal —

"g. Date of Birth (retention preference shall be granted to the senior aged employee)." D.I. 30 at 108. In addition, Brodsky's supervisor in 1994, Peter M. Dunckley, explained he was not to consider age or "potential" in selecting individuals to be "displaced"; rather, he "should evaluate the job on its merits." D.I. 30 at 137.

C. The 1991 RIF

As a result of the RIF process in 1991, ten out of the twenty-two non-hourly employees in the Resins Research & Development group were either discharged or took early retirement. D.I. 30 at 222, 286-87. Out of the eight scientists working in the Rubber Lab, only four remained after the 1991 RIF. D.I. 30 at 259, 265. Of the twelve individuals who survived the 1991 RIF, six were either forty-seven years of age or older. D.I. 30 at 222. Brodsky had originally been slated for termination as part of the 1991 RIF, but was spared because his extensive background in rubber and tires made him particularly valuable for the Inner Liner project and another rubber project that was looming on the horizon — the Uniroyal project. D.I. 30 at 69, 222.

D. Dr. Napolitano Joins the Rubber Lab

In approximately 1990 or 1991, Dr. Michael Napolitano ("Napolitano"), a twenty-nine year old chemist, was transferred into the Rubber Lab from his work with hot-melt adhesives and tackifiers.¹ D.I. 30 at 423-24. Napolitano, Brodsky alleges, was accorded far different treatment than Brodsky; while Hercules viewed Napolitano as an up-and-comer with tremendous potential and took affirmative steps to broaden his areas of expertise, Brodsky was seen as having one foot in the retirement grave, and was continually denied opportunities to work with products other than rubber. As support for this allegation, Brodsky points to statements made by Dunckley, who supervised both Brodsky and Napolitano. Referring to Napolitano, Dunckley wrote, "We need to further broaden his experience by using him on projects from different [units]. We need to start development of management skills." D.I. 35 at 70.

E. The 1994 RIF

Hercules instituted a second RIF in early 1994. The staff in the Rubber Lab was again targeted, and this time, Brodsky was selected for termination. Brodsky declined an offer of early retirement and Hercules rejected his proposal that he be permitted to work another approximately one-and-a-half years until he became eligible for retirement. D.I. 30 at 52-53. About two weeks later Brodsky was formally informed he had been terminated. D.I. 30 at 51-52. According to Brodsky, his supervisor abruptly told him he was terminated and gave him three hours to collect his belongings and leave. D.I. 30 at 254.

Brodsky's supervisor gave three reasons Brodsky was cashiered: (1) his experience and expertise were concentrated in rubber products, thus making him less versatile and flexible than other employees in the Resins Group; (2) he had been outperformed by other employees in the Resins Group; and (3) the two rubber research projects which had spared his job in 1991 — the Uniroyal and...