Santini v. Cytec Industries, Inc.

• Decision Date: 31 January 2008
• Docket Number: Civil Action No. 07-0130-CG-B.
• Citation: 537 F.Supp.2d 1230
• Parties: John J. SANTINI, Plaintiff, v. CYTEC INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

537 F.Supp.2d 1230

John J. SANTINI, Plaintiff, v. CYTEC INDUSTRIES, INC., Defendant.

Civil Action No. 07-0130-CG-B.

United States District Court, S.D. Alabama, Southern Division.

January 31, 2008.

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Gregory R. Jones, William C. Tidwell, III, Hand Arendall, L.L.C., Mobile, AL, for Plaintiff.

Audrey Yearout Dupont, Burr & Forman LLP, Jeffrey A. Lee, Stephen E. Brown, Maynard, Cooper, and Gale P.C., Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

CALLIE V.S. GRANADE, Chief Judge.

This cause is before the court on the motions of defendant, Cytec Industries, Inc. ("Cytec") for summary judgment (Docs.31, 59), plaintiffs opposition thereto (Docs.38, 50, 69), plaintiffs motion for summary judgment as to defendant's counterclaim (Doc. 63), Cytec's opposition thereto (Doc. 68), and the replies of both parties in support of their motions (Docs.42, 52, 70, 71). The court finds that Cytec's motions for summary judgment are due to be GRANTED as to Counts One, Two, Three and Five but DENIED as to Count Four, and its previously asserted Counterclaim. The court further finds that plaintiffs motion for summary judgment as to Cytec's Counterclaim is MOOT, as Cytec has not asserted a counterclaim in relation to plaintiffs currently pending amended complaint.

I. FACTS

A. Procedural History

The plaintiff in this action, John Santini, originally filed this case in the Circuit Court of Mobile County, Alabama, asserting four Counts: 1) Cytec terminated plaintiff because of his age in violation of Alabama Code § 25-1-21 et. seq., 2) Cytec constructively discharged plaintiff because of his age in violation of Alabama Code § 25-1-21 et. seq., 3) Cytec discriminated against plaintiff and/or retaliated against plaintiff on the basis of his age in violation of Alabama Code § 25-1-21 et. seq., and 4) Cytec breached plaintiffs employment agreement. (Doc. 1). Cytec removed the case on the basis of diversity of citizenship. (Doc. 1). On February 21, 2007, Cytec answered the original complaint and asserted a counterclaim alleging that plaintiff has been unjustly enriched and is in breach of contract by receiving retirement and/or severance benefits he is not entitled to. (Doc. 4). On May 16, 2007, plaintiff amended his complaint. (Doc. 25). The amended complaint asserts all four of plaintiffs original Counts and adds a fifth Count which asserts that Cytec's refusal to pay severance benefits violates ERISA. (Doc. 25). On May 31, 2007, Cytec filed an answer to the amended complaint that did not include a Counterclaim but otherwise appeared complete — addressing each and every allegation by plaintiff and asserting affirmative defenses. (Doc. 28). The answer to the amended complaint did not refer in anyway to Cytec's previous answer. On July 20, 2007, Cytec filed a motion for summary judgment as to Counts Three, Four and Five. (Doc. 31). Then, on November, 19, 2007, Cytec filed a motion for summary judgment as to plaintiff's remaining claims (Counts One, Two, and Three) and as to Cytec's counterclaim. (Doc. 59). On that same date, plaintiff filed a motion for summary judgment as to Cytec's counterclaim.

B. Plaintiff's Position at Cytec

Plaintiff, who was born October 25, 1946, began employment with Cytec in June 1968.(Doc. 25, ¶ 6). Plaintiff worked in procurement for Cytec at its Mobile, Alabama, location from January 1, 1993, until he was terminated on December 31, 2006.¹ (Doc. 25, ¶ 6). Cytec is organized into a number of different business units. (Doc. 25, ¶ 7). The Mobile office was primarily concerned with the water treatment division of Cytec. Plaintiff handled the nonstrategic day-to-day procurement activities for the Mobile plant, (Hain Depo. pp. 10, 24), but his duties extended to other divisions of Cytec such as the R & D division in Stamford, Connecticut. He was globally responsible for mining chemicals and alumina processing chemicals. (Santini Depo. pp 68-69, Santini Aff.). According to plaintiffs supervisor, approximately 50% of plaintiffs time was spent on activities for the Mobile facility. (Hain Depo. pp 17-19).

C. The Sale of Cytec's Water Treatment Product Lines

On or about July 17, 2006, Cytec publicly announced that it was selling its water treatment product lines to an unrelated company named Kemira Group ("Kemira"). (Marosits Aff. ¶ 2). Prior to the public announcement, Cytec and Kemira entered into an Asset and Purchase Agreement ("APA") regarding the sale to Kemira. (Marosits Aff. ¶ 3). The sale included four of Cytec's manufacturing sites, including the Mobile facility. (Morosits Aff. ¶ 3). Kemira agreed to offer employment to all Cytec employees necessary for the continued operation of the water treatment product line and Mobile facility. (Marosits Aff. ¶ 3). The APA states that prior to the closing date, Kemira will offer employment on an at will basis, effective on the day following the closing date, in a comparable position, within 50 miles of their current location, at no less favorable base salary and annual bonus arrangements and make available such benefits to each U.S. employee other than ones receiving long-term disability benefits and employees on short-term disability leave from active employment. (APA § 6.08(a)). Under the APA, Kemira could not, for a period of two years, adversely amend or alter the annual salary, annual bonus or benefits provided to employees that accepted its job offer. (APA § 6.08(n)). The APA further restricts Kemira for a period of two years, from hiring as an employee or consultant any U.S. employee who does not accept Kemira's job offer of employment pursuant to section 6.08(a). (APA § 6.08(d)).

D. Plaintiff's Offer of Employment with Kemira and Plaintiffs Termination/Retirement

Cytec identified five employees who were involved in designating which Cytec employees were essential to the water treatment product line and the continued functioning of the Mobile facility: Joseph Marosits, John Harrison, Scot Hain, Steve Fisher, and Marc MaCaulay. (Doc. 69, Ex. 5, p. 4). According to Cytec, plaintiff was chosen to go with Kemira because he was an experienced procurement person and was at the Mobile site — "he was the logical person to go." (Marosits Depo. p. 72). Cytec contends that plaintiff was deemed essential to the water treatment product line. (Doc. 69, Ex. 5, p. 5). By letter dated September 29, 2006, Kemira offered employment to plaintiff at his current salary and same location. (Marosits Aff. ¶ 6, Ex. A). After receiving the offer of employment, plaintiff asked Cytec whether he could retain his position with Cytec and was advised that he would no longer have a position at Cytec, that he must accept the position or retire. (Marosits Aff. ¶ 6, Santini Depo. pp. 142-143, 249-50, 275-276). Plaintiff rejected the job offer from Kemira and applied for retirement benefits from Cytec. (Marosits Aff. ¶ 6, Marosits Depo. p.p 52-53). Plaintiff was the only employee at the Mobile facility that did not accept Kemira's job offer. (Marosits Aff. ¶ 5).

Pursuant to Cytec's Retirement Plan, an employee is not considered retired if he becomes employed by a purchaser. (Cytec's Salaried and Non-bargaining Employees' Retirement Plan, § 3.6). Cytec's Severance Pay Program states that severance is not payable if the terminated employee declines employment with a successor. (Marosits Aff. ¶ 6). Pursuant to the severance policy, Cytec provides severance pay to eligible employees whose employment is terminated for reasons other than activities prejudicial to Cytec. (Marosits Aff. ¶ 7). These provisions were for the purpose of preserving the business unit as a whole. (Marosits Depo. p. 19).

Plaintiff had a written employment agreement with Cytec which provided for six months written notice of termination. After first refusing to honor the contract as "too old," Cytec allowed plaintiff to spend three months as a Cytec employee assisting Kemira with the transition and was told he would be paid the remaining three months of the notice in a lump sum. (Santini Depo. p. 144; Marosits Depo. pp. 54, 56-60).

In January and February 2007, plaintiff worked for Long's temporary agency and was assigned to assist Kemira. Beginning March 1, 2007, plaintiff began consulting for Kemira (Santini Depo. pp 23, 24-25, 38-39, 290).

E. Cytec's Retention of Other Employees

Another Supply Chain employee for Cytec, Kathery Zhang, was the Americas division lead for water treating. (Doc. 64, Exs. 7-8; Marosits Depo. pp. 73-74; Zhang Depo. p. 30). Ms. Zhang did not work out of the Mobile site and was retained by Cytec and given plaintiffs mining chemicals duties. (Doc. 63, Exs. 13, 14, Marosits Depo. p. 74). Plaintiffs other packaging duties were given to another employee, Wayne Kudwa. (Doc. 63, Ex. 15).

Plaintiff submitted a copy of an e-mail, dated June 28, 2006, from Marc Macaulay to David Lauber which attaches another email, dated June 2, 2006, from Mr. John Harrison to Jeff Futterman, Raymond Heslin, and Marc Marcaulay. (Doc. 69, Ex. 22). The second e-mail discusses the need to provide the names of Supply Chain personnel² that are to be "terminated from Cytec as part of Barolo³" and the need to retain certain other employees. (Doc. 69, Ex. 22, p. 1). The e-mail states that, as to the Supply Chain personnel in Mobile, "everyone goes [to the purchasing company] with exception of Chris Johnson (NA DC mgmt)." (Doc. 69, Ex. 22, p. 1). The attached e-mail lists under Procurement as those to be severed from company at Botlek as "One of Berkel, Lageweg whichever is closest to retiring." (Doc. 69, Ex. 22, p. 2). The attached e-mail also lists as names of people that will stay at Botlek: "Procurement: One of Berkel, Lageweg, presumably the one that is not nearest retirement." (Doc. 69, Ex. 22, p. 2).

F. Cytec's Severance Plan

Cytec's Severance Plan provides that "Cytec may, in its sole discretion,...