Frick v. Potash Corp. Of Saskatchewan Inc
| Decision Date | 13 September 2010 |
| Docket Number | NO. 1-09-59,No. CV 2008 0866,1-09-59,CV 2008 0866 |
| Citation | 2010 Ohio 4292 |
| Parties | DAVID FRICK, PLAINTIFF-APPELLANT. v. POTASH CORPORATION OF SASKATCHEWAN, INC., ET AL, DEFENDANTS-APPELLEES. |
| Court | Ohio Court of Appeals |
2010 Ohio 4292
DAVID FRICK, PLAINTIFF-APPELLANT.
v.
POTASH CORPORATION OF SASKATCHEWAN, INC., ET AL, DEFENDANTS-APPELLEES.
No. CV 2008 0866
Court Of Appeals Of Ohio
Third Appellate District
Allen County
September 13, 2010
APPEARANCES: Ann-Marie Ahern
Kevin E. Griffith and Franck G. Wobst for Appellee
Appeal from Allen County Common Pleas Court
for Appellant
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WILLAMOWSKI, P.J.,
{¶l} Plaintiff-Appellant, David Frick, ("Frick"), appeals the judgment of the Allen County Court of Common Pleas granting summary judgment in favor of Defendants-Appellees, Potash Corp. of Saskatchewan, Inc., et al. Frick contends that there were genuine issues of material fact entitling him to a trial on his claims of age discrimination. For the reasons set forth below, the judgment is affirmed.
{¶2} Frick filed a complaint against Potash Corp. of Saskatchewan, Inc. ("PCS"), and several other companies and individuals affiliated with PCS (hereinafter, collectively "Appellees"), claiming they discriminated against him based on his age, in violation of R.C. 4112.02(A), when they failed to hire him for a position in their new organization. Frick was born on June 2, 1952. In 1989 he began employment at the chemical plant located at Ft. Amanda Road in Lima Ohio ("the Plant"). When Frick was first hired, the facility was owned and operated by BP Lima Chemicals. Several changes in ownership and operating structure occurred at the Plant during the years Frick worked there.
{¶3} In 2007, defendant PCS Nitrogen Ohio, LP ("PCSNO"), owned the Plant; however, it was operated by INEOS USA ("INEOS") pursuant to an operating agreement between PCSNO and INEOS. During 2007, Frick was an employee of INEOS, as was the entire hourly workforce at the Plant. In March 2007, INEOS notified PCSNO of its intent to terminate its obligation to continue
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operating the plant, effective December 31, 2007. PCSNO did not want to close the facility, so it decided to operate the Plant itself and hire its own workforce.
{¶4} Defendant Don Johnson ("Johnson"), who was age 61 at the time, was one of only five persons at the Plant who were employed by PCSNO in 2007. Johnson had been employed as a general manager and was selected by PCSNO to take a leadership role in guiding PCSNO through the transformation. Johnson then asked Todd Sutton ("Sutton") to join PCSNO and assist Johnson in forming the new organization. Sutton, then 37 years old, was an INEOS-employed chemical engineer who had worked at the Plant his entire professional career, working in various units and holding several supervisory positions during his 15 years of employment. Danielle Good ("Good") was hired in August 2007 as a human resources manager to coordinate the hiring process for the new PCSNOoperated facility.
{¶5} Johnson and Sutton testified that they had become very frustrated by the working conditions and attitudes that had developed at the Plant over the years, including a poor working relationship between hourly employees and management and a rigid organizational structure. They felt that the Plant's operating areas and units were overly segmented and rigid and some of the INEOS chemical operators had become too "silo-ed," which meant they were often unwilling or reluctant to perform work tasks outside their own current bid job even though they were well
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trained and qualified to do so. They saw PCSNO's decision to hire its own workforce as a "very unique opportunity to make some key operational and organizational changes, and to make a fresh start at the facility ***." This was a "once-in-a-plant-lifetime opportunity" to change the working culture and get rid of the negative and corrosive "BP/INEOS heritage." They worked on developing new organizational structures, policies and approaches along with new "expectations" for employees.
{¶6} Frick and his fellow chemical operators learned that their current employer, INEOS, would cease operating the plant and they would be required to apply for positions with the new PCSNO organization. Those who applied but were not offered positions with PCSNO would be offered severance packages. The severance pay benefit ranged from two months of pay for employees with less than three years credited service, up to 16.5 months of pay for employees with 30 or more years of service. Based upon his 18 years of service, Frick was entitled to receive 13.5 months of severance pay if he applied for, but did not receive a job offer. It was mandatory to apply for a job with PCSNO in order to receive a severance package, so all of the INEOS employees applied. However, many of the older INEOS employees had told Sutton or Johnson that they did not want jobs with the new organization but had applied in order to be eligible for the severance package.
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{¶7} After reviewing the applications, conducting interviews, and making determinations as to which employees would best meet the needs of the new PCSNO organization, Appellees offered employment to 49 of the 72 former INEOS chemical operators plus several additional employees who were not operators.1 Frick, who was 55 years old at the time, was among the 23 chemical operators 2 who were not offered a position.
{¶8} Frick maintains he should have been offered a position with PCSNO because he was a dutiful, committed, capable and experienced operator who had earned many awards for outstanding job performance and received positive job reviews. Frick had perfect attendance during at least 12 of the years he was employed at the Plant and was never disciplined. Frick charges that Sutton and PCSNO created a new, younger culture, ridding themselves of some of the oldest and most experienced operators in the Plant.
{¶9} Frick was qualified to perform six different chemical operator roles and had constantly trained and tested to maintain his qualifications and licensures.
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In contrast, he claims that the eleven operators newly hired by INEOS in September 2007 (see fn. 1), and offered jobs by PCSNO, were inexperienced and required training on every aspect of the job. Ten of those eleven operators were under the age of 40. Also, in April 2008, PCSNO hired an additional twenty chemical operators, 18 of whom were under the age of 40. Frick asserts that the average age of the original group of INEOS operators was 48.57 years old. After April 2008, the average age had dropped to 40.04 years. Furthermore, 22 of the 23 employees who were not extended job offers by PCSNO were over the age of forty. Frick believes that the decision not to hire him for a job that he performed well for 18 years was the result of age discrimination in violation of both the disparate treatment and disparate impact provisions of R.C. 4112.02. He filed a complaint on June 5, 2008.
{¶10} Appellees deny that age played any part in their hiring decision, and state that they did not extend an offer of employment to Frick because he did not possess the characteristics that they wanted for the new workforce. Johnson and Sutton were both familiar with Frick and his work before the interview process. Sutton had known and interacted with Frick since 1992 and he had developed serious concerns about Frick's negative attitude toward management and his "siloed" mentality. Sutton felt Frick would not fit in well with the new operational and teamwork culture PCSNO wanted to establish. Sutton believed Frick was
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someone who "would throw wedges in the system as much as he could" and that he had an "us against them" mentality. Although Johnson had not known Frick for as long as Sutton, Johnson had the impression that Frick was someone who was always "stirring the pot," and who tore work teams apart, rather than build them up.
After much discovery and the taking of numerous depositions, Appellees filed a motion for summary judgment contending that Frick had no evidence to support his claim that he was not hired because of his age and he could not establish that Appellees' stated reasons for not hiring him were pretextual. On October 14, 2009, the trial court granted Appellees' motion for summary judgment, finding that no genuine issue of material fact existed as to whether Appellees committed age discrimination in declining to hire Frick. It is from this judgment that Frick appeals, presenting the following two assignments of error.
The trial court erred in granting summary judgment on Plaintiff-Appellant's disparate treatment age discrimination claim because Plaintiff-appellant raised genuine issues of material fact under the McDonnell Douglas method of proof and presented substantial evidence from which a jury could infer that Defendants' stated justification for their decision not to hire Plaintiff-Appellant were pretextual.
Because Plaintiff-Appellant raised genuine issues of material fact as to each element of his claim for disparate impact, the trial
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court erred when it granted summary judgment on PlaintiffAppellant's disparate impact age discrimination claim.
{¶12} Pursuant to Civ.R. 56(C), summary judgment may be granted if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of...
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