Kozma v. AEP Energy Services, Inc., 2005 Ohio 1157 (OH 3/17/2005)
| Decision Date | 17 March 2005 |
| Docket Number | Case No. 04AP-643. |
| Citation | 2005 Ohio 1157 |
| Parties | Richard P. Kozma, Plaintiff-Appellant, v. AEP Energy Services, Inc. et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 03CVH-6900.
Law Offices of Russell A. Kelm, Russell A. Kelm and Joanne W. Detrick, for appellant.
Porter, Wright, Morris & Arthur, LLP, and Franck G. Wobst, for appellees.
{¶1} Plaintiff-appellant, Richard P. Kozma ("appellant"), appeals from the judgment of the Franklin County Court of Common Pleas in which that court granted summary judgment to appellees, AEP Energy Services, Inc. and American Electric Power Corporation (collectively referred to hereinafter as "AEP"), as to appellant's claim for age discrimination. For the reasons that follow, we affirm.
{¶2} The following facts are taken from the pleadings, the transcripts of appellant's deposition and that of AEP employee Paula May ("May"), or are undisputed by the parties. AEP is engaged in the business of buying and selling energy products, including electricity, natural gas, coal and crude oil. AEP hired appellant in March 1998, when he was 45 years old, for the position of Operations Manager for its Western Trading Group. In September 2001, appellant advanced to the position of Manager of the Power Volume Management Group ("PVMG"), which position was located in the "energy services mid/back office" in Columbus.
{¶3} Early in the fall of 2002, AEP announced that it would undertake a corporate restructuring program entitled "Sustained Earnings Initiative"("SEI"), which included a plan for a reduction-in-force — or layoffs — in its Columbus offices.1 Following the announcement, a retention and layoff schedule was prepared, indicating which employees in the energy services mid/back office would be laid off in at least two planned "waves" of layoffs, and which employees would ultimately be retained.2 Appellant's name appeared on the list of those proposed to be "released."3
{¶4} The first wave of the SEI occurred in November 2002. As this initial wave approached, appellant inquired of his supervisor, Tim Trumpler ("Trumpler"), whether he should be concerned about his job. Trumpler responded in the affirmative, and indicated he did not know precisely when appellant would be terminated, but that appellant needed to start looking for a new job.4 Trumpler stated that appellant would not be released during the first wave of the SEI.5 When asked why appellant had been chosen for release, Trumpler stated he did not know why appellant was being released.6
{¶5} On November 5, 2002, appellant e-mailed Steve Appelt ("Appelt"), who then held the position of Executive Vice President, Administration. In his message, appellant inquired whether the number of weeks of any severance package he accepted in conjunction with his being laid off would count toward his total years worked, for purposes of the vesting of his pension plan. He indicated, "I'm less than 4 months away from my 5 year anniversary with AEP (March 8, 2003)."7 Appelt responded that severance pay is not normally considered for purposes of pension vesting, but that appellant should ask other specific individuals whether he could remain on the payroll for the equivalent number of weeks of regular salary payments in lieu of a lump-sum severance payment, and thus reach the date upon which his pension plan would be fully vested. When appellant approached Trumpler about his pension vesting concerns, Trumpler replied, 8
{¶6} In mid-November 2002, Trumpler called appellant into his office for a meeting that also included May, who then occupied the position of Director of Power Accounting. Trumpler and May asked appellant, "what do you think about having Tony DiGioia replace you as the manager of power volume management."9 At the time, Tony DiGioia ("DiGioia") was appellant's counterpart for AEP's Gas Settlements Accounting Group.10 Appellant responded, "yes, I think that could work."11 Then, Trumpler and May made the following proposal:
[T]his is what we'd like to offer you. We'd like to have you take on a special project until you're no longer here. We can keep you employed on this project until the end of May. But we — — this project needs to be worked on. You're the perfect person. It would give you what you want, which is a job through at least March, and give AEP what they need which is somebody to handle this project. It would give Tony [DiGioia] time to learn and you'd train him because you would still be there. In fact, you'll move your seat. He'll take your seat and you can help him learn your job so that we can make this transition.12
{¶7} Upon hearing this proposal, appellant thought, "* * * cool, I'm going to have employment * * * at least through May, which means I'll get my pension."13 When appellant asked when Trumpler and May wanted this change to occur, they replied that they would like the transition to occur in mid-December. Trumpler initiated a conversation about offering appellant a retention package, the specifics of which Trumpler was not prepared to set forth at that time. Following his meeting with Trumpler and May, because a written retention plan was not yet in place, appellant immediately began contacting acquaintances regarding potential employment opportunities. Later, in early December, Trumpler approached appellant with an offer of $25,000 in severance pay plus a retention bonus of $25,000 if appellant remained full-time through May 31, 2003. The retention payment would be prorated if appellant left before that date to take a position elsewhere.
{¶8} Specifically, appellant was to work during his "retention period" as the head of a project known as the "PJM Shadow Settlement Project" ("the project"). The project entailed the establishment of a system that would effectively accomplish settlements (accounting) of AEP's energy trading activities within a new regional market (or network) that AEP planned to enter. The new market was called the "Pennsylvania — New Jersey-Maryland" network, or "PJM."14 AEP planned to become a member of this market on April 1, 2003.15 The project was to continue through the end of May in order to give AEP one full month of data following AEP's joining of PJM, plus one month to confirm that the system was working properly. Then, appellant's task was to "hand off at that point to the power volume management group."16 According to appellant, when the project was proposed to him, he understood that:
[t]his job would normally come underneath the purview of the power volume management group. They're making a change and putting Tony [DiGioia] in my place. Tony does not have the power experience or the breadth of knowledge to handle this particular project on top of learning the necessary skills to handle this department.
So they said, this would be great for us. You can handle this project. You can train Tony and we can get ourselves prepared to be entering into PJM. You're uniquely qualified to be able to handle that. Tony can't handle it because he doesn't have the background yet.17
{¶9} Appellant thought that the plan "[made] sense" and was "a good use of personnel."18 Trumpler told appellant that the change in management of the PVMG from appellant to DiGioia would become effective on December 15, 2002.19 Contemporaneously, the Gas Settlements Accounting Group, headed by DiGioia, was consolidated with the PVMG, and both groups came under DiGioia's direction.20 According to appellant, his special assignment to work on the project officially commenced on the following day, December 16, 2002.21 On that date appellant "had a meeting with the staff and made the transfer and moved my desk."22 Appellant's desk was moved at his suggestion so that those that reported to the PVMG manager position would start going to DiGioia "more readily" and would stop going to appellant.23
{¶10} The duties associated with the project kept appellant busy on a full-time basis.24 Appellant stated he could not quantify how much of his workweek was spent training DiGioia, and stated, "I left that up to Tony for a large part ."25
There was no formalized training, per se * * *.
But the training took up more things like this. And if you were Tony, you would ask — come over and say, Rich, I'm having trouble understanding some of these things that are happening * * *. Can you help describe what's happening there. All right. Let's go over it.
And we'd go over it. He'd get an idea, get more familiar with the data and how it moves, who's using it and what the needs are. And the other implications for our systems downstream within AEP. And that's how the training occurred.
So I'd be doing that at the same time I'd be sitting at my desk either reading documents for PJM or working up and reading e-mails * * *.26
DiGioia asked more questions and sought more of appellant's assistance in the initial period following the mid-December transition than he did in later weeks.27
{¶11} Appellant worked full-time on the project until it prematurely ended in March or April 2003.28 At that point "it was decided that * * * AEP [ ] was not going to go any further into the PJM market expansion."29 On March 5, 2003, after becoming aware that AEP was not going to join the PJM market as previously scheduled, appellant wrote an email to Trumpler and May.30 Therein, appellant related that 31
{¶12} Appellant went on to remind Trumpler and May...
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