Ryan v. Berwick Industries, Inc.
| Decision Date | 25 March 1999 |
| Docket Number | No. 4:CV-97-1258.,4:CV-97-1258. |
| Citation | 40 F.Supp.2d 250 |
| Parties | Francis X. RYAN, Plaintiff, v. BERWICK INDUSTRIES, INC., et al. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Joseph E. CampBell, Law Offices of Joseph E. Campbell, Philadelphia, PA, for plaintiff.
Vincent Candiello, William E. Doyle, Jr., Morgan, Lewis & Bockius, Harrisburg, Douglas E. Ede, Miami, FL, John E. Hall, Eckert Seamans Cherin & Mellott, Pittsburgh, PA, for defendants.
BACKGROUND:
On August 15, 1997, plaintiff Francis X. Ryan commenced this employment discrimination action against Berwick Industries, Inc. ("Berwick") and Henry T. Doherty ("Doherty") with the filing of a complaint pursuant to the Veterans Reemployment Rights Act ("VRRA"), 38 U.S.C. §§ 4301-4307.1 Plaintiff alleges that on August 15, 1991, defendant Doherty, former Berwick CEO, terminated plaintiff's employment with Berwick because of his participation in the United States Marine Corps Reserves. Plaintiff contends that such action constitutes employment discrimination under the VRRA.
Presently before the court are the following motions which are ripe for disposition:2
1. Plaintiff's motion for summary judgment, filed on January 20, 1999;3
2. defendant Doherty's motion for summary judgment, filed on January 20, 1999;4
3. defendant Berwick's motion for summary judgment, filed on January 20, 1999;
4. defendant Berwick's motion to strike plaintiff's demand for attorneys fees, filed on January 20, 1999; and
5. defendant Berwick's motion to strike the affidavit of Dirk Graham, filed on February 16, 1999.
For the reasons which follow, we will grant defendants' motions for summary judgment and deny plaintiff's motion.
DISCUSSION:
I. MOTION FOR SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate 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 judgment as a matter of law." FED. R. Civ. P. 56(c) (emphasis added).
...[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex at 323, 325, 106 S.Ct. 2548.
Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248, 106 S.Ct. 2505. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir.1988).
II. MATERIAL AND UNDISPUTED FACTS
In contravention to LR 56.1, plaintiff has failed to file a statement of material and undisputed facts in support of his motion for summary judgment. However, defendants have filed a counterstatement of material and undisputed facts in which they reference facts recited in plaintiff's memorandum of law in support of his motion for summary judgment. Therefore, we deem defendants as having had an opportunity to respond to plaintiff's facts as to whether they are supported by the record.
The following recitation of facts, deemed material and undisputed, is taken from these materials:5 defendant's counterstatement of material facts; defendant's statement of undisputed material facts; and plaintiff's response to defendant's statement of undisputed material facts. The court's recitation reflects any disagreement or expansion in the facts as set forth by the parties.6
* * * * * *
At the time of the events giving rise to the complaint, Berwick Industries, Inc., was a manufacturer of decorative ribbons and bows. Henry T. Doherty was Berwick's president, CEO, and majority shareholder. He hired plaintiff to begin employment with Berwick on August 20, 1990. Plaintiff was not hired under the specific terms of a written employment contract; rather, an offer letter was signed by Doherty outlining his job duties and expectations. The offer letter, dated June 25, 1990, indicated plaintiff's job titles as, among others, Assistant to the President, Director of Berwick, and CFO/COO of Different Looks (a division of Berwick). Moreover, the letter indicated certain benefits plaintiff may be entitled to, such as a 401K Plan, Berwick stock purchase, 1% bonus based on pre-taxed profits, and use of a company car. Doherty also indicated his preference for plaintiff to relocate to the Berwick area so as to benefit his position with the company. It is undisputed that plaintiff never moved to the Berwick area, and that Doherty expressed his displeasure with plaintiff's decision in not doing so.
When plaintiff began employment at Berwick, he was a reservist with the United States Marine Corps. His military obligations entailed attending Active Military Duty one weekend per month and two weeks per year. In January, 1991, plaintiff informed Doherty that he was pending active duty mobilization for service in the Persian Gulf War. However, plaintiff was never "called up" for active duty. In March, 1991, after the War had ended, plaintiff's duties in the Marine Corps increased during the post-mobilization drawdown. It is undisputed that the time plaintiff took off from work to fulfill his military obligations became a point of contention between plaintiff and Doherty. Doherty characterized plaintiff as having "split loyalties" between Berwick and the Marine Corps.
During plaintiff's employment at Berwick, draft employment agreements were drawn up by Berwick's attorney, Robert Shields ("Shields"). However, a final agreement was never signed.7 Plaintiff continued to engage in contract negotiations throughout his employment at Berwick. In light of these negotiations, Doherty indicated to Shields his intention to sell Berwick stock to plaintiff after the employment agreement was finalized. In order for Doherty to sell stock to plaintiff, other minority shareholders would have to relinquish shares so the sale of stock to plaintiff would not reduce Doherty's percentage of ownership.8 However, once stock was offered to plaintiff for purchase, plaintiff indicated to Doherty that he could not afford the $240,000 purchase price.
When plaintiff began his employment with Berwick, he proposed hiring an assistant by the name of Chris Neddo ("Neddo") with whom he had worked at his former job. Doherty gave plaintiff the "go-ahead" to hire Neddo based upon plaintiff's recommendation.9 She subsequently was hired as the office manager for Different Looks, and the company moved from Berwick, Pennsylvania, to Baltimore, Maryland, on plaintiff's initiative. Different Looks ultimately failed. Doherty terminated Neddo's employment with the company on the advice of David Hickman, President and CEO of Different Looks, who confirmed that Neddo was not satisfactorily fulfilling her job responsibilities.10
Meanwhile, plaintiff's salary and job responsibilities increased during his employment with Berwick. For example, he was elected to the Board of Directors on September 20, 1990, for which he received additional compensation in the amount of $1,000 a month. He was also promoted on November 19, 1990 to Executive Vice President, with a resulting salary increase to $135,000. Finally, he received another promotion on March 15, 1991, and was given another salary increase to $150,000 on April 15, 1991.11
However, between the years 1990 and 1991, the company experienced a financial downturn. Berwick's pre-tax profit in 1990 was $5,011,291. In 1991, Berwick's pre-tax profit was $1,665,659. Berwick's lenders began complaining about profitability during this time. By the summer of 1991, Doherty and plaintiff had developed a hostile working relationship. The rift in their relationship was further cemented by a series of events, culminating in plaintiff's employment termination on August 15, 1991.12
III. VRRA
Before we begin our analysis, we will highlight the section of the VRRA under which plaintiff brings his claim. Prior to 1994, § 2021 of the VRRA (which was renumbered § 4301 in 1992, and relevant parts of which were renumbered § 4311 in 1994), provided, in pertinent part as follows:
Any person who seeks or holds a position [in the employ of the United States government, state or a political subdivision thereof, or private employer] shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.
38 U.S.C. § 2021(b)(3) (...
To continue reading
Request your trial