Duart v. FMC Wyoming Corp.

• Decision Date: 05 August 1994
• Docket Number: No. 93-CV-0349-J.,93-CV-0349-J.
• Citation: 859 F. Supp. 1447
• Parties: John Raymond DUART, Plaintiff, v. FMC WYOMING CORP., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Wyoming

859 F. Supp. 1447

John Raymond DUART, Plaintiff, v. FMC WYOMING CORP., a Delaware corporation, Defendant.

No. 93-CV-0349-J.

United States District Court, D. Wyoming.

August 5, 1994.

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Bruce S. Asay, Cheyenne, WY, for plaintiff.

James E. Fitzgerald, Fitzgerald Law Offices, Cheyenne, WY, and Stacy Shartin, Seyfarth, Shaw, Fairweather & Gerladson, Los Angeles, CA, for defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS and MOTION FOR SUMMARY JUDGMENT

ALAN B. JOHNSON, Chief Judge.

The Motion to Dismiss and Motion for Summary Judgment or Partial Summary Judgment filed by defendant FMC Wyoming Corporation came before the Court for consideration, having been submitted to the Court on briefs of the parties. The Court, having considered the defendant's motions, the plaintiff's responses thereto, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

Plaintiff's complaint asserts claims for relief against defendant, including causes of action 1) under the Age Discrimination in Employment Act¹ ("ADEA"), 2) a state law based claim for breach of contract and/or promissory estoppel, 3) a state law claim for breach of the covenant of good faith and fair dealing; and 4) a state law claim for negligent infliction of emotional distress. He seeks compensatory relief, punitive damages as well as attorney's fees and costs.

Plaintiff was employed by FMC as an Engineering Technician IV at the defendant's Green River operation between October 7, 1991 and February 5, 1993. Plaintiff was born on December 15, 1934, and was 56 years old at the time of his employment with FMC.² Plaintiff's immediate supervisor at FMC was Lynn Larson. Plaintiff claims that from the beginning of his employment, Ms. Larson was antagonistic toward him and "seemingly sought to effect his termination." Plaintiff's Memorandum in Opposition to the Defendant's Motion for Summary Judgment or Partial Summary Judgment, at 2.

Plaintiff asserts that he attempted to work satisfactorily but could never seem to please Ms. Larson, although he claims he worked well for other supervisors. Lynn Larson prepared and discussed with plaintiff a written six-month performance review on March 27, 1992. She expressed concern about several areas of plaintiff's performance, including plaintiff's interpersonal and communication skills and an apparent lack of recent hands-on experience. She also believed plaintiffs performance would improve as he became more familiar with the facility in Green River. Duart Deposition Exhibit 37.

Lynn Larson, Jerry Miles and Dave Del Carlo, with input from the Human Resources department at FMC, decided to place plaintiff on probation after approximately one year of work. Plaintiff was given a warning that most likely he would be terminated, and he claims that Ms. Larson then recommended that he take time off to seek other employment after he was placed on probation. Plaintiff met with Ms. Larson and Mr. Miles three separate times while he was on probation, approximately once a month.

During that period, plaintiff claims he redoubled his efforts to please Ms. Larson, and notes that he was released from probation in December of 1992. The decision to release plaintiff from probation was made at the end of his 90 day probationary period by Ms. Larson, with the concurrence of Jerry Miles and Dave Del Carlo. Plaintiff asserts that when he was released from probation, the defendant, through Jerry Miles, assured him that he had no worry of termination and that he would be around a long time. First Amended Complaint, ¶ 14.

After plaintiff was released from probation, Ms. Larson continued to find that she had concerns about plaintiff's technical competency and ability to do the job. She questioned plaintiff's performance with respect to at least two projects. Plaintiff had been assigned a project in which heaters and blowers were to be installed in the Mono Powerhouse at FMC. Ms. Larson's opinion, as well as that of the electrical contractor FMC had engaged on the project, was that plaintiff's system was more complex and expensive than necessary. They also asserted plaintiff failed to order equipment on a timely basis to install the system. Affidavit of Don Irwin; Larson Deposition, Vol. II at 110; Duart Deposition Exhibit 48. Ms. Larson also expressed concern that plaintiff did not understand the requirements of another project called the "main shop power cable upgrade project." Plaintiff had ordered 15,000 volt cable for the job, although Ms. Larson opined that it was not technically justified. After going on a walk-through of the project with plaintiff, Ms. Larson also believed that plaintiff did not understand the basic principles involved in the project. Larson Deposition, Vol. II at 110-122. She then contacted Dave Del Carlo for advice and to discuss her concerns about plaintiff's performance, as her immediate supervisor, Jerry Miles, was not available. Ms. Larson did not recommend any particular course of action. Affidavit of Dave Del Carlo, ¶ 7. After consulting with the Human Resources Department, the decision was made by Mr. Del Carlo to terminate plaintiff rather than place him on probation again. Affidavit of Dave Del Carlo, ¶¶ 5-8.

Plaintiff characterizes the events somewhat differently. He claims that in spite of his continued efforts to please Ms. Larson, she continued to take every opportunity to criticize his work and job performance, and that in February of 1993, she took action to terminate his employment. He also claims that Ms. Larson repeatedly reprimanded him and made derogatory remarks about his technical competency and age while employed at FMC. His amended complaint alleges that she was overheard by other employees to have made remarks about his age, including "all you old bastards ought to be retired and let us young people run the company the right way." First Amended Complaint, ¶ 11. Plaintiff requested a transfer to another department at FMC, which was denied. Plaintiff claims he was wrongfully terminated on February 5, 1993 under the pretense that plaintiff had made a mistake in ordering electrical cable to the detriment of FMC. First Amended Complaint, ¶ 16. Plaintiff urges that his termination was unlawful and was contrary to law and the policies and procedures established by FMC. He also claimed he was replaced by an engineer who was 26 years old who had only recently graduated from college.³ After plaintiff was terminated from employment with FMC, plaintiff filed complaints with the Wyoming Fair Employment Practices Commission and the Equal Employment Opportunity Commission, and filed suit after receiving a right-to-sue letter.

Defendant has generally denied plaintiff's allegations, and affirmatively alleges that his claims are barred by a failure to meet the administrative prerequisites under the ADEA, the statute of limitations, that plaintiff has failed to allege facts sufficient to allow recovery of punitive damages, that plaintiff's employment was terminable at will, that plaintiff's discharge from employment was for cause, that plaintiff breached the employment contract, that plaintiff failed to mitigate his damages and that the defendant acted in good faith.

During depositions and the course of preparing for trial in this case, defendant FMC acquired evidence that plaintiff had misrepresented his background and experience as an electrical engineer in the resume he had submitted when being considered for the position with FMC and in the Application for Employment filled out on the first day of his employment. FMC, in its motion for summary judgment, also asserts that plaintiff misled a key decision-maker in the interview process in order to obtain employment.

Specifically, plaintiff's résumé stated that his professional experience included a position as Senior Electrical Engineer with Placid Oil and Refining Co. from February, 1989 to present. Prior to that time, the résumé states that he was self-employed as a Consulting Engineer from January 1987 to February 1989. He represented that as a Consulting Engineer during that period he designed, redesigned and upgraded existing equipment, and worked as a troubleshooter. During his deposition, plaintiff testified that while he was a Consulting Engineer in 1987-1989 he did no design, redesign, upgrading, or troubleshooting work at all. Plaintiff's deposition testimony indicates that he engaged in consulting work for a total of about five weeks during that two year period and that during most of that time, he was touring the United States with his family.

The application submitted indicated that plaintiff had been employed with Placid Refining from February 1989 to September 1991 and that his supervisor was Mickey Dugas. Plaintiff also told the interviewers at FMC, when he was seeking employment with defendant, that he would be leaving Placid because he did not want to do the type of work that would likely be required of him in the future. The Affidavit of Thomas Bourgeois indicates that plaintiff commenced employment with Placid in November of 1989 and was terminated from his employment at Placid in July of 1991.⁴ Mr. Bourgeois' Affidavit also indicates that plaintiff's position was Electrical Engineer, that he never held the position of Senior Electrical Engineer, that Mr. Bourgeois was the direct supervisor of plaintiff during his entire tenure at Placid, that Mickey Dugas was never plaintiff's supervisor, and that plaintiff never had any reporting relationship to Mr. Dugas during his tenure at Placid.

The Affidavit of Dave Del Carlo, Site Services Manager for FMC in Green River, Wyoming states, that he has ultimate authority for all hiring and firing decisions in the Maintenance Department where plaintiff worked at FMC. Mr. Del Carlo indicates that he was not aware that plaintiff had "falsified his résumé or employment application" prior to reaching the decision to terminate p...