Recchia v. Kellogg Co.

• Decision Date: 27 June 2013
• Docket Number: Civil Action No. 10–4899 (JEI/KMW).
• Citation: 951 F.Supp.2d 676
• Parties: Nicholas RECCHIA, Plaintiff, v. KELLOGG COMPANY, Defendant.
• Court: U.S. District Court — District of New Jersey

951 F.Supp.2d 676

Nicholas RECCHIA, Plaintiff,

v.KELLOGG COMPANY, Defendant.

Civil Action No. 10–4899 (JEI/KMW).

United States District Court, D. New Jersey.

June 27, 2013.

The Vigilante Law Firm, P.C., Jacqueline M. Vigilante, Esq., Mullica Hill, NJ, Richardson, Galella, & Austermuhl, Allen E. Richardson, Esq., Woodbury, NJ, for Plaintiff.

Day Pitney LLP, Dennis M. Reznick, James W. Boyan III, Parsippany, NJ, Varnum LLP, Lawrence J. Murphy, Grand Rapids, MI, for Defendant.

OPINION

IRENAS, Senior District Judge.

This is an employment discrimination case. Plaintiff Nicholas Recchia (“Recchia”) was terminated by Defendant Kellogg Company (“Kellogg”) as part of a restructuring program. Recchia brings claims against Kellogg under a variety of federal and state employment law statutes. Presently before the Court are Kellogg's Motion for Summary Judgment (Dkt. No. 47) and Motion to Seal (Dkt. No. 48).¹ For the reasons given below, the Motion for Summary Judgment will be granted and the Motion to Seal will be denied.

I.

For the purposes of this Motion, the Court resolves any factual disputes in favorof Plaintiff Nicholas Recchia.² Recchia is a former employee of Defendant Kellogg Company, a multinational food manufacturing company. (SUMF ³ ¶ 1) He worked as a warehouse supervisor at a Kellogg facility in Blue Anchor, New Jersey (“Blue Anchor”) from 1981 until he was terminated on September 1, 2009. ( Id. ¶ 2; SSMF ⁴ ¶ 1) He was fifty-five years old at the time. (Compl. ¶ 16)

Sometime in 2008, Recchia began drinking to excess, in part due to concerns about his son's substance abuse problems. (SUMF ¶ 3) In March 2009, Recchia checked into an inpatient rehabilitation center to treat his alcohol dependency. He was discharged from the facility in June 2009. (SSMF ¶¶ 2, 4) After his discharge from the treatment center, Recchia was diagnosed with kidney cancer. ( Id. ¶ 4) He underwent surgery and received treatment for kidney cancer from June through August 2009. ( Id.; SUMF ¶ 6) During this period, Recchia was on an approved leave of absence from work. (SSMF ¶ 3)

While Recchia was on his leave of absence, Kellogg was undergoing a restructuring through a program called K–Lean. (SUMF ¶ 7) The first step of this two-step program involved creating new job descriptions and organizational charts for various Kellogg facilities. The second step of the program was assessing the workforce at each facility to determine which employees were most qualified for the new jobs. ( Id. ¶ 9) An outside consultant, Celerant, assisted Kellogg in creating the new job descriptions and facility-wide organizational charts. ( Id. ¶ 10) Celerant recommended that the Blue Anchor facility adopt a new managerial structure with eleven instead of twelve supervisor positions. ( Id. ¶ 14)

As part of the assessment process, managers at the Blue Anchor facility were to assess the existing supervisors to determine where they would be placed within the new organizational structure, if they were placed at all. (SSMF ¶ 15) Kellogg's Corporate Human Resources Department developed an assessment form for teams to use in conducting the assessments. (SUMF ¶ 11) Each candidate was assessed on each criterion on a scale of 1 to 5, with 5 being the highest score. ( Id. ¶ 12) The minimum score needed to qualify for a position was 2.5; positions were to be awarded to the individual with the highest score of those assessed for that position. ( Id. ¶ 13)

Ron Daubenhauser, the Blue Anchor plant director, and Christine Ferrigno, the human resources manager, determined that Recchia was a candidate for three positions: Operations Services Manager, Operations Supervisor, and Operations Supervisor—Logistics. (SSMF ¶ 20) The first position was a level 2 position; the second two were level 3 positions. (SUMF ¶ 15) Level 2 positions were higher on the organizational chart than level 3 positions. (Def.'s Ex. 4) Recchia was subsequently disqualified from the Operations Services Manager and Operations Supervisor positions, as he was assessed at 2.08 and 2.35 for those positions respectively. (SUMF ¶ 16)

Although Recchia qualified for the Operations Supervisor—Logistics position with a score of 2.58, another employee, Juan Ferriero, received a higher score of 3.0 and as a result was selected for that position. ( Id. ¶¶ 17–18) Ferriero is one year older than Recchia. ( Id. ¶ 21) Recchia was assessed “without a position.” ⁵ (SSMF ¶ 46)

The K–Lean assessment was completed in April 2009 while Recchia was on his leave of absence. (SUMF ¶ 22) Instead of terminating him, Kellogg informed Recchia that he had been assessed without a position but could remain on a leave of absence. When he returned to work, he would be considered for any available openings for which he was qualified. ( Id. ¶¶ 22–23) Recchia was released to return to work on September 1, 2009. At that time, there were two Operations Supervisor positions open. (SSMF ¶ 52) However, based on his score of 2.35 for that position, Kellogg deemed that Recchia was not qualified and terminated him. (SUMF ¶ 24)

At the time of his termination, Recchia received a written Employee Separation Packet, which included, among other things, a benefits summary, the Kellogg Company Severance Benefit Plan (“Severance Plan”), and a Separation Agreement and General Release (“Release”). (Compl. Ex. B; SSMF ¶ 55) The benefits summary explained the various benefits for which Recchia was eligible, including continuation of health insurance pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. §§ 1161–69, 42 U.S.C. §§ 3000bb–1 to –8. (Compl. Ex. B) The packet also contained two lists created to comply with the Older Workers Benefit Protection Act of 1990 (“OWBPA”), 29 U.S.C. § 626(f). ( Id.) One list provided the job titles and birthdays of the Blue Anchor employees who were selected for termination and thus eligible for the Severance Plan; the other gave the job titles and birthdays of ineligible employees. ( Id.)

Under the Severance Plan, Recchia was eligible to receive severance pay and benefits for a period of twenty-six weeks. (Def.'s Ex. 10 (“Release”) ¶ 2(a)) However, Recchia's receipt of those benefits was contingent upon him signing the Release and waiving any possible claims against Kellogg (Def.'s Ex. 9 (“Severance Plan”), at 2, 6; Release ¶¶ 2, 13), including any claims arising under Title VII, the Age Discrimination in Employment Act (“ADEA”), as amended by the OWBPA, 29 U.S.C. §§ 621–34, the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, as well as any claims for discrimination. (Release ¶ 13) The Release advised Recchia to consult an attorney and stated that Recchia had a minimum of forty-five days—until October 16, 2009—to consider the Release. ( Id. ¶ 19) It further provided that Recchia could revoke the Release within seven days of signing it. ( Id. ¶ 20) Finally, the Release specified that the OWBPA lists were attached and that Recchia acknowledged receiving them. ( Id. ¶ 21)

Although the Severance Plan allowed Kellogg to begin making severance payments and providing benefits to Recchia before he had signed the Release, it explicitly stated that

the entitlement to any severance benefits under this Plan is contingent upon the Employee's submission of an unrevokedform. Therefore, if an Employee fails to submit the signed form to Kellogg, or submits the signed form but later revokes it, no additional severance benefits will be paid to the Employee and Kellogg ... may offset the amount of any severance payments already made from sums otherwise due to the Employee ..., and if the full amount of said severance payments are not fully offset, Employee shall pay the balance to Kellogg upon demand.

(Severance Plan 6) Kellogg began providing severance payments and benefits to Recchia on the day he was terminated, September 1, 2009. (SUMF ¶ 28)

Sometime between September 1, 2009, and October 6, 2009, Recchia consulted with an attorney, Jacqueline Vigilante, regarding the Severance Plan and the Release. (SSMF ¶ 70) On October 6, Ms. Vigilante sent a letter to Kellogg indicating that she had reviewed the Employee Separation Packet and that she believed there was “potential liability for Kellogg's.” (Def.'s Ex. 11, at 1) The letter stated that Recchia would “accept a revised severance package including the equivalent of eighteen months [sic] severance with full contribution to the pension plan so that Mr. Recchia can make his full 30 years employment.” ( Id. at 2) It also asked for an additional thirty days to consider the Release “while the parties' [sic] discuss and consider the information contained in this correspondence.” ( Id. at 3)

On October 9, seventeen days before the end of the forty-five-day period, Patrick Cronin, Associate Human Resources Business Partner, terminated Recchia's severance pay and benefits. (SSMF ¶ 72) At the same time, Ms. Vigilante's letter was sent to the Kellogg ERISA Administrative Sub–Committee (“Committee”), which is charged with administering the Severance Plan. (Pl.'s Ex. 18) The Committee considered Recchia's request for an exception to the Severance Plan's prohibition on the accrual of “additional credited, vesting or eligibility service ... for purposes of any such retirement plan.” (Severance Plan 4; Pl.'s Exs. 16, 18) On November 2, the Committee denied Recchia's request for an exception, stating that the Committee could not deviate from the Severance Plan's terms. (Pl.'s Ex. 16)

During this time frame, Recchia was still being treated for kidney cancer and alcohol dependency. In addition, his son, who was covered by Recchia's insurance policy, was undergoing treatment for substance abuse. (SSMF ¶¶ 77–78) On October 28, 2009, Recchia and his wife, Maria Recchia, sought to have their son admitted to an inpatient treatment facility. While there, they were told that their son's coverage had been denied, and they paid for two days of his...