Menovcik v. BASF Corp.

• Decision Date: 18 October 2011
• Docket Number: Case No. 09-12096
• Parties: GREGORY MENOVCIK, Plaintiff, v. BASF CORP. Defendant.
• Court: U.S. District Court — Eastern District of Michigan

GREGORY MENOVCIK, Plaintiff, v. BASF CORP. Defendant.

Case No. 09-12096

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: October 18, 2011

Honorable Julian Abele Cook, Jr.

ORDER

The Plaintiff, Gregory Menovcik, complains that the Defendant, the BASF Corporation ("BASF"), terminated his employment in violation of existing federal and State of Michigan statutes and State of Michigan common law. After a four-day trial, the jury rejected Menovcik's claims that BASF had (1) discharged him from the employment rolls because of his age in violation of the Elliott-Larsen Civil Rights Act ("ELCRA"), Mich. Comp. Laws § 37.2101, et seq.; (2) breached a mutually agreed upon contract of employment; and (3) defamed him by mischaracterizing the reasons for its administrative decision to third persons. The jury also rendered an advisory verdict in which it recommended a rejection of Menovcik's claim that BASF had unlawfully terminated him in violation of § 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140.

The Court now renders its independent findings of fact and conclusions of law regarding Menovcik's ERISA § 510 claim. See Fed. R. Civ. P. 52(a) ("In an action tried on the facts . . . with an advisory jury, the court must find the facts specially and state its conclusions of lawseparately."). To the extent that any findings of fact by the Court may be deemed to be conclusions of law, they are adopted as such. To the extent that any conclusions of law may be deemed to be findings of fact, they are so adopted.

I

A. Facts Stipulated by the Parties

1. Menovcik was born on June 15, 1954.

2. Menovcik began working for Celanese Polymers in 1979. BASF subsequently acquired Celanese Polymers, after which he continued as an employee of BASF.

3. Menovcik earned a Bachelor of Science degree in chemistry from Wayne State University on June 1, 1982, and a Master of Science degree in chemistry from Wayne State University five years later.

4. Except for leaves of absence to obtain his degrees in chemistry from Wayne State University, he worked continuously for BASF and/or Celanese Polymers from 1979 through March 13, 2009.

5. BASF involuntarily terminated his employment on March 13, 2009.

6. As of March 13, 2009, Menovcik held the position of Technical Manager of the Product Development Group for OEM Coatings with BASF, a position to which he had been promoted in April 2005.

7. As of March 13, 2009, Menovcik was a grade level 19 employee of BASF where he earned a base annual salary of $143,868.05.

8. Including his base salary, bonuses and other compensation into his financial picture, Menovcik earned a total of $183,061.06 in compensation from BASF in 2008, whichincluded a bonus of $39,400.

9. Bonuses from BASF are not guaranteed.

10. When BASF involuntarily terminated Menovcik's employment on March 13, 2009, he was an official participant in BASF's Salaried Employee's Pension Plan ("the Plan").

11. For purposes of the Plan, Menovcik was credited with an initial service date of March 24, 1981.

12. On October 11, 1999, Menovcik elected to participate in the Traditional Pension Plan that had been offered to him as a part of the Plan.

13. After BASF involuntarily terminated his employment on March 13, 2009, Menovcik elected to begin receiving monthly pension payments from the Plan on his 55th birthday. Since making this election, Menovcik has received monthly pension payments of $2,479.30, which he will continue to receive for the remainder of his life.

14. If Menovcik had remained an employee of BASF through his 55th birthday (June 15, 2009) and taken early retirement on that date, he would have been entitled to receive monthly pension payments from the Plan of $3,890.13 until he reached the age of 62. Thereafter, the monthly pension payments would have been $3,221.36 for the rest of his life.

15. Had Menovcik remained employed by BASF through July 1, 2010 (at which point his age plus years of service with BASF would have equaled 85) and taken early retirement on that date, he would have received monthly pension payments from the Plan of $5,448.61 until he turned 62. Thereafter, the monthly pension payments would have been $4,774.20 for the remainder of his life.

16. After BASF terminated Menovcik's employment, BASF conducted a meeting on March 13,2009 to which some of his colleagues and subordinates were invited. During this meeting, BASF and/or its representatives advised Menovcik's colleagues and subordinates that his employment had been terminated for a violation of BASF's Code of Conduct.

17. On January 1, 2008, the number of employees in BASF's OEM Coatings division in the United States was 467. On October 30, 2009, the number of employees in BASF's OEM Coatings division in the United States had been reduced to 348.

18. As of March 13, 2009, Menovcik's life expectancy was 25.7 years.

19. As of December 7, 2010, Menovcik's life expectancy was 24.9 years.

20. If Menovcik had been terminated due to the elimination of his position, he would have been entitled to 44 weeks of severance but only after signing a release of BASF.

B. Additional Findings of Fact by the Court:

1. At or about the time when Menovcik was terminated from his employment, BASF was undergoing a comprehensive cost-cutting program.

2. As part of this cost-cutting program, some work was shipped overseas and to other locations in the United States.

3. A planned reduction in staff personnel was also implemented by BASF, in that approximately twenty-five employees were terminated from Menovcik's department within a few days following his termination.

4. Menovcik consistently received promotions, pay raises, and strong performance reviews throughout his employment at BASF.

5. Prior to March 2009, (a) he had never been told of any employee-generated complaints regarding his management style, and (b) his most recent performance review indicated thathe had done a "great job mentoring and coaching" and "helped team dynamics."

6. At the time of his termination, Menovcik directly supervised seven employees who, in turn, oversaw approximately thirty other employees.

7. In early March, Kristy Karr, the Director of the Human Resources Department for the OEM division at several BASF sites, received a telephone call from Michael Pcolinski, a director of another BASF division. He informed her that he had been contacted by a BASF employee who (a) complained about the treatment by Menovcik of those persons under his supervision, and (b) had filed or intended to file a complaint on the confidential BASF "complaint hotline." Karr subsequently learned that the complainant was Patrick Mormile.

8. On March 9, 2009, Karr discussed Pcolinski's call with Menovcik's direct supervisor, Kenneth Perry. It was their collective agreement that they should give a serious look into these allegations.

9. Thereafter, Karr and Perry met with their boss, Juan Carlos Ordonez, who was advised by them that they would conduct an investigation into the merits, if any, of the complaint.

10. On the morning of March 10, 2009, Karr and Perry met with Menovcik, who was told by them of their intention to investigate the charges that had been made against him by an unidentified employee.

11. They resisted Menovcik's request that they disclose the identity of the complainant or the specific details of the accusations.

12. In making his request for disclosure, Menovcik denied having maltreated any employee, including the unidentified complainant.

13. During the period between March 10th and March 13th of 2009, Karr and Perryinterviewed five of Menovcik's direct subordinates; namely, Donald Campbell, Timothy December, Hans Fuchs, Paul Harris, and Patrick Mormile.

14. Neither Perry - Menovcik's direct supervisor - nor any of the approximately thirty individuals who reported to Menovcik's direct subordinates were interviewed as part of the investigation.

15. On March 10, 2009, a complainant - subsequently identified as Patrick Mormile - filed a complaint on the confidential BASF "complaint hotline," contending that Menovcik (a) had threatened the jobs of some of his subordinates, (b) was vindictive and devious, and (c) attempted to pit employees against one another.

16. The complaint also stated - incorrectly, it turned out - that another individual had filed a complaint about Menovcik with the human resources department four days earlier. The complaint further stated that, the following day, Menovcik called his supervisor at home, asked to be told the identity of that individual, and threatened to bring the "wrath of God" down upon the person who had filed a complaint about him with human resources.

17. Mormile testified - via a taped de benne esse deposition - that the complaint inaccurately recorded his statements to the hotline. Specifically, he stated that Menovcik had believed that somebody had filed a complaint with human resources, and that he had called Harris - one of his direct reports, not his supervisor - to learn the identity of who had done so.

18. Harris testified that Menovcik had, in fact, called him at home, sought to determine if anyone within their group had filed a complaint about him with the human resources department, and asserted that he would make certain that anyone who did so would lose their job or be demoted.

19. On March 11th, Karr, after receiving and reviewing a copy of the hotline complaint, met with Ordonez once again to update him on the process of the investigation. According to Karr, she was instructed by Ordonez to "do what you think is right." This comment was construed by Karr to mean that she was authorized to terminate Menovcik's employment if that, in her opinion, would be an appropriate employment measure.

20. The Karr-Perry investigation revealed the following information that is summarized below:

Donald Carpenter, who appeared to be extremely apprehensive to be talking about this situation, was told by Menovcik that, if he registered a complaint about him

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