Molenda v. Hoechst Celanese Corp.

• Decision Date: 16 March 1999
• Docket Number: No. 97-2046-Civ.,97-2046-Civ.
• Citation: 60 F.Supp.2d 1294
• Parties: Michael J. MOLENDA, Plaintiff, v. HOECHST CELANESE CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Florida

60 F.Supp.2d 1294

Michael J. MOLENDA, Plaintiff, v. HOECHST CELANESE CORPORATION, Defendant.

No. 97-2046-Civ.

United States District Court, S.D. Florida, Miami Division.

March 16, 1999.

COPYRIGHT MATERIAL OMITTED

Merrick L. Gross, Susan N. Eisenberg, Jeremy P. Leathe, Akerman, Senterfitt & Eidson, P.A., Miami, FL, for defendant.

Margaret M. Ciraldo, Ciraldo Law Offices, P.A., Coral Springs, FL, for plaintiff.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SEITZ, District Judge.

THIS CAUSE came before the Court upon Defendant's Motion for Summary Judgment [D.E. No. 128]. For the reasons set forth below, the Court grants the motion as to the "Latin American incident" in Count I (the whistle-blower claim), as to Count III (breach of contract), as to Count IV (defamation), and as to Count V (age discrimination) of the Third Amended Complaint.

INTRODUCTION

This is an action for damages and equitable relief for alleged violations of the Florida Whistle-blower's Act ("the Act"), Section 448.102(3), Florida Statutes (1997), and the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq., and also for defamation and breach of contract. Plaintiff asserts he was terminated in retaliation for reporting illegal conduct by his supervisor and by business associates. Plaintiff also asserts he was terminated because of his age. Additionally, Plaintiff alleges that Defendant failed to pay him a bonus that was due and owing at the time he was terminated. Finally, Plaintiff claims that, after he was terminated, Defendant made untrue and defamatory remarks about Plaintiff's work performance while employed with Defendant.

In response to Plaintiff's allegations, Defendant moved for summary judgment, asserting that Plaintiff was terminated as a result of a corporate restructuring which changed the format of the division in which Plaintiff worked from an individual-oriented sales approach to a team concept. It was the consensus of management that Plaintiff did not fit the profile of a "team player" and, therefore, he was terminated. Defendant further denies that Plaintiff was entitled to a bonus. Defendant also asserts that no defamatory statements were made about Plaintiff or, if such were made, there is no evidence that they were published. Alternatively, Defendant argues that the statements, if made and published, were privileged as a matter of law and, therefore, are not actionable.

UNDISPUTED MATERIAL FACTS

The Court finds that the following material facts are not in dispute and are relevant to a resolution of the issues presented herein:

A. Corporate Structure.

1. Defendant, Hoechst Celanese Corporation, is an American company, which is a subsidiary of Hoechst AG in Germany.

2. Hoechst AG is also the parent company of the wholly-owned subsidiaries Hoechstdo-Brazil and Hoechst-Columbia.

3. Hoechstdo-Brazil and Hoechst-Columbia are legal entities separate from Defendant, and Defendant has no ownership in those entities. The employees of each corporation are not employees of the Defendant.

4. Hoechst AG also has an 11% interest in Celanese Mexicana, S.A., and Defendant has a 40% interest in that corporation. The remainder of Celanese Mexicana is owned by the Mexican general public.

B. Plaintiff's Employment History with Defendant.

1. Plaintiff, Michael J. Molenda, was born on November 1, 1954, and is presently 44 years old.

2. Plaintiff was originally hired by Defendant in 1980. In 1991, he was promoted to the position of marketing manager for Latin America in Defendant's Technical Polymers Division.

3. As marketing manager, Plaintiff's primary work responsibility was to be the interface between the Defendant and the Latin American affiliates (the re-sellers of Defendant's products) and direct customers in those regions. Plaintiff was assigned to the Miami office, where he was the sole employee.

4. In 1994, Plaintiff's supervisor was Nick Pericich. During that year, Defendant conducted an investigation into rumors that Pericich was involved in taking illegal kickbacks and compromising company financial dealings.

5. At the time of the investigation, Brian O'Reilly was Vice President of Human Resources. In that capacity, he facilitated discussions between Plaintiff and Ron Silversten, the associate general counsel for Defendant who conducted the investigation.

6. Following the investigation, Pericich was induced to resign. O'Reilly then assumed Pericich's position as Vice President of Sales and Marketing in April 1995.

7. Plaintiff received a good performance review for 1995. O'Reilly made no criticisms on that review form.

8. In 1995, a sales redesign team, including outside consultants, was assembled to restructure the Technical Polymers Division's sales organization. A second implementation team composed of senior managers was then assembled to fill the positions within the newly created institutional structure. During the redesign process, the corporate structure of the Technical Polymers Division was "basically blown up" and then "put back together again in a different form." This redesign involved a shift from individual-oriented sales to a team-based system. O'Reilly was a key player in the redesign process.

9. As a result of the reorganization, Plaintiff's employment with Defendant was terminated in November, 1996. The Defendant's proffered reason for selecting Plaintiff for termination was that his character did not fit in with the new company philosophy and image because he was not, in essence, a "team player." Plaintiff admits that he had difficulty working with certain employees of the Latin American affiliates.

10. Other employees were also terminated as a result of the redesign.

11. Plaintiff's supervisors who made the decision to terminate him were Carl Amond and O'Reilly. As of the date of Plaintiff's termination, Amond was 55 years of age and O'Reilly was 56 years of age.

12. Plaintiff, who was 42 on the effective date of his termination, was replaced by Lindsey Deal, who was 39 years of age at the time.

13. On November 12, 1996, as part of the transition process, Plaintiff was informed that he would have to close down the Miami office, and return the company car and computer.

14. By letter from Plaintiff's attorney to Defendant, dated November 15, 1996, Plaintiff confirmed that he was informed on November 12, 1996, that he would need to return the company car and computer and close down the Miami office by November 22, 1996. Plaintiff's counsel represented, however, that these matters could not be resolved until December 8, 1996.

15. By letter dated November 21, 1996, Defendant informed Plaintiff that he: will be eligible for the Management Performance Plan bonus on a pro-rated basis (through November 22, 1996). The bonus amount is determined taking into account overall corporate, group and business unit results as well as your individual performance. The exact amount of your bonus, if any, will be determined after the end of the year and, if you are entitled to a payment, it will be sent to you in February 1997.

16. By letter dated December 11, 1996, Defendant informed Plaintiff that he had not complied with the transition requirements of returning the company car, personal computer and any other company property and closing the Miami office. The letter specifically stated that "Payment of any bonus for 1996 will be contingent on your completing this office transition."

17. Plaintiff did not return the company car or computer by December 8, 1996. Plaintiff further admits that he never disconnected the telephone lines of the Miami office.

18. All bonuses are discretionary.

STANDARD OF REVIEW

In deciding a summary judgment motion, the Court must apply the standard set forth in Fed.R.Civ.P. 56(c), which states in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The party seeking summary judgment always bears the initial burden of demonstrating that there is no genuine dispute as to any material fact in the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

After the moving party has met this initial burden, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(e), however, does not permit the nonmoving party to avoid summary judgment by resting on the pleadings, but "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "The mere existence of a scintilla of evidence in support of the position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 251-52, 106 S.Ct. 2505.

ANALYSIS

A. The Florida Whistle-Blower's Act Claim.

Plaintiff first asserts a claim under the Florida Whistle-blower's Act ("the Act"), Section 448.102(3), Florida Statutes, for retaliatory discharge. The Act provides, in pertinent part, that "[a]n employer may not take any retaliatory personnel action against an employee because the employee has: ... (3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation." Fla.Stat. § 448.102(3). An employee who has been subjected to a retaliatory personnel action on account of his whistle-blowing activities has a cause of action for damages, reinstatement, and injunctive relief. Fla.Stat. §...