Tuck v. Henkel Corp.

• Decision Date: 03 September 1992
• Docket Number: No. 91-2591,91-2591
• Citation: 973 F.2d 371
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1199, 59 Empl. Prac. Dec. P 41,733 Robert E. TUCK, Plaintiff-Appellant, v. HENKEL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 371

973 F.2d 371

59 Fair Empl.Prac.Cas. (BNA) 1199,

59 Empl. Prac. Dec. P 41,733

Robert E. TUCK, Plaintiff-Appellant, v. HENKEL CORPORATION, Defendant-Appellee.

No. 91-2591.

United States Court of Appeals Fourth Circuit.

Argued March 5, 1992.

Decided Aug. 25, 1992.

As Amended Sept. 3, 1992.

Eugene C. Hicks, III, Charlotte, N.C., argued, for plaintiff-appellant.

James Bernard Spears, Jr., Haynsworth, Baldwin, Johnson & Greaves, P.A., Charlotte, N.C., argued (Stephen D. Dellinger, on brief), for defendant-appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and MURRAY, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

ERVIN, Chief Judge:

Robert E. Tuck filed an action in the Western District of North Carolina against Henkel Corporation alleging that he was discharged in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA or "the Act"). The district court entered summary judgment against Tuck. We reverse.

I.

Henkel manufactures and sells specialty chemical products for various business applications, primarily for the textile and paper industries. Henkel is a German-owned company that has its home office in Dusseldorf, Germany, and owns 24 facilities in the United States. Henkel's operations in Charlotte, North Carolina included two manufacturing facilities, one on Westinghouse Boulevard and the second on Sugar Creek Road. Tuck worked for Henkel's Sugar Creek plant for 14 years, the last 12 as Plant Manager.

Tuck was discharged on March 1, 1989, when he was 59 years old, even though he was working in a fully satisfactory manner according to his supervisor, Brent Sears. Tuck had suffered a mild heart attack on December 17, 1989, although Henkel does not contend that Tuck's health had anything to do with his dismissal. Henkel replaced Tuck as Plant Manager with a younger man, Mark Smith, who was then 37 years old.

According to Henkel, Neville McDonald, Henkel's Vice President of Manufacturing Engineering, Organic Product Group, and Sears, who managed both Charlotte facilities and had supervised Tuck since 1988, decided on their own to dismiss Tuck immediately before March 1, 1989. They needed to cut costs in their Charlotte operations because of a reduced need for chemicals from the two plants, and accordingly reduced the manufacturing schedule at the Westinghouse plant from seven to five days a week and laid off eight Westinghouse employees. Henkel's Textile Chemical Research and Development Group (R & D Group), headed by Dr. Rudy Heer, was responsible for new product development. According to Henkel, its Sugar Creek plant relied on the R & D Group for technical assistance in day-to-day manufacturing operations; this time spent on technical assistance reduced the amount of time the R & D Group could spend on new product development and was costly. McDonald and Sears contend that they wanted the Sugar Creek Plant Manager to take on the R & D Group's technical support responsibilities. McDonald and Sears state that they considered four candidates, including Tuck, on the basis of technical ability and job performance for this new, reconstituted, Plant Manager position. They selected Smith, who had Bachelor of Science and Masters degrees in chemical engineering as well as technical experience with Henkel. Tuck, on the other hand, had only completed his general equivalency degree for high school and one year of technical college, although he also had approximately 30 years of experience, often as a plant manager, in various chemical manufacturing companies.

Tuck tells a different story. He contends that Heer, who supervised Tuck for the two years before Sears, was an age-biased individual who discriminated against Tuck by giving him unjustly poor evaluations. Tuck stated in deposition that Heer repeatedly said to him that Heer wanted to get rid of the older people and replace them with "young blood." J.A. 101. Marvin Thomas, who was Superintendent of Production and Warehouse at the Sugar Creek plant, also stated in an affidavit that Heer had pointedly stated to several older employees, including Tuck, that what Henkel needed was "younger people." J.A. 323.

Tuck contends that Robert Kahn, Director of Human Services in Henkel's United States headquarters in Ambler, Pennsylvania, was the real decision-maker in his dismissal, and that Kahn was influenced by Heer in making his decision. As evidence that Kahn made the decision, Tuck points to a handwritten note labelled "confidential" by Kahn to his subordinate, Michael Schubert, Human Resources Manager in Charlotte, written in late December 1988 or early January 1989. This note responded to Sears' and Schubert's suggestion that Henkel increase Tuck's salary from $48,600 to $50,060 per year. The note stated, "Based on our plans I would ask you and Brent [Sears] to reconsider the appropriateness of a salary increase." J.A. 188. Tuck reads "our plans" to refer to Kahn's decision to fire Tuck based on Heer's recommendation and make it appear that the reason was Henkel's Charlotte reduction-in-force. Henkel contests this reading, arguing that "plans" mean nothing more sinister than the general force reductions. In support of his reading, Tuck points out that Kahn stated that he had spoken with Heer several times about Tuck and that Heer did not want Tuck to continue as Plant Manager. ¹ Also, Kahn stated that he knew that Sears was considering firing Tuck when Kahn wrote the note. Tuck argues that this is reason to doubt Sears' and McDonald's story that they were the real decision-makers, since they claimed not to have decided to fire Tuck until fully two months later. Tuck also points out that Sears had told Tuck that Henkel would continue employing Tuck even after it closed the Sugar Creek plant ² because he was doing such a good job and that Sears approved two salary raises for Tuck--not, Tuck argues, the words and actions of a man soon to decide to fire Tuck. Finally, Tuck notes that McDonald and Sears have no written memoranda or communications with Personnel backing up their story; their recollections of the procedures used to select Smith are hazy at best.

Tuck also presents anecdotal evidence that Henkel discharges employees because of their age. Tuck provides the examples of several older employees who were fired, and Thomas, Superintendent of Production at Sugar Creek, states in his affidavit:

It has been apparent for many years to anyone employed by Henkel for a considerable length of time that the corporation has a policy of terminating its employees as they become older, generally before reaching age 55 and certainly before age 60, and thus before higher monthly payments have become payable under Henkel's retirement plans....

J.A. 323. When questioned at deposition, Kahn could name but one Henkel employee who was still working at age 65, the normal retirement age according to Henkel's retirement plan. That employee was the president of a company that Henkel had acquired, who retired at age 65. In addition, Kahn could remember only one managerial employee who retired after age 62, and he was a vice president.

Finally, Tuck attempts to rebut Henkel's asserted rationale for discharging him. Tuck contends that Henkel did not fire him to keep the R & D Group out of day-to-day operations to save money and develop new products. According to Thomas' affidavit, Smith, Tuck's replacement, had no experience in running a chemical plant, no knowledge in altering chemicals, and refused to be bothered with questions about chemical production. Furthermore:

I know of no change whatever that took place with respect to the Research and Development staff or chemists spending more or less time in assisting with our production of chemicals at Sugar Creek under Bob Tuck as Plant Manager, under Mark Smith as Plant Manager, or under Tom McKillop as Plant Manager. It had always been rare that anyone from R & D ever had anything to do with production after R & D developed and released a new product for production. R & D was called to the same extent if a problem developed under Mr. Tuck, Mr. Smith, and Mr. McKillop, up until production was decreased on closing the plant. I also am aware of no increase in the development of new products by R & D during the time Mark Smith was Plant Manager. As I was Superintendent of Production, I was in a position to know the foregoing things.

J.A. 324. In addition, McKillop, Smith's replacement as Plant Manager at Sugar Creek on August 1, 1990, had a technical competency much the same as Tuck's.

After discovery, Henkel moved for summary judgment. The district court entered judgment against Tuck following a hearing on June 10, 1991. Tuck timely appealed.

II.

Summary judgment is appropriate in those cases where there is no genuine dispute as to a material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). We must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate only where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986), such as where the non-moving party has failed to make a sufficient showing on an essential element of the case that the non-moving party has the burden to prove. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We review summary judgments de novo. Higgins v. E.I. Du Pont De Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988).

Under the ADEA, it is unlawful for an employer to terminate...