Whitten v. Farmland Industries, Inc., Civ. A. No. 88-2637-O.

• Decision Date: 19 March 1991
• Docket Number: Civ. A. No. 88-2637-O.
• Parties: Louis A. WHITTEN, Larry J. Warren, Alan T. Fenstemaker, and Carl A. Bonham, Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

759 F. Supp. 1522

Louis A. WHITTEN, Larry J. Warren, Alan T. Fenstemaker, and Carl A. Bonham, Plaintiffs, v. FARMLAND INDUSTRIES, INC., Defendant.

Civ. A. No. 88-2637-O.

United States District Court, D. Kansas.

March 19, 1991.

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Dennis E Egan, Popham, Conway, Sweeny, Fremont & Bundschu, Kansas City, Mo., John B. Gage, II, Overland Park, Kan., for plaintiffs.

Edmund S. Gross, Prairie Village, Kan., Nancy M. Landis, Michaela M. Warden, William C Martucci, Spencr, Fane, Britt & Browne, Holly McCoy Zimmerman, Farmland Industries, Inc., Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on the summary judgment motion of defendant Farmland Industries, Inc. (hereinafter "Farmland"). The four plaintiffs allege various age discrimination and retaliation claims, pendent state law claims of breach of an implied employment contract and fraud, and a claim under the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. More specifically, plaintiffs contend that their former employer discriminated against them on the basis of their ages when Farmland terminated their employment and failed to transfer or rehire them. They also claim that members of Farmland's management expressly promised them that they would not forfeit the rights and benefits they had acquired as members of the union if they accepted positions as supervisors. For the reasons stated below, the court will grant in part defendant's summary judgment motion.

I. STATEMENT OF FACTS

Plaintiffs Louis Whitten (hereinafter "Whitten"), Larry Warren (hereinafter "Warren"), Alan Fenstemaker (hereinafter "Fenstemaker") and Carl Bonham (hereinafter "Bonham") are former employees of Farmland's plant in Lawrence, Kansas, who were terminated on December 30, 1986. Defendant contends that they were discharged pursuant to a reduction in force (hereinafter "RIF"), necessitated by reduced sales of fertilizer. Terminations were not limited to employees at defendant's facility in Lawrence. The December 30 RIF was the second phase of a reorganization in which a total of 1,100 employees in a work force of 7,100 were discharged. Fifty employees were initially terminated at defendant's facility in Lawrence, Kansas.¹

Whitten began his employment at defendant's Lawrence plant in 1960. In November of 1975, he was promoted to labor pool foreman. In his capacity as foreman of the labor pool, plaintiff worked in every area of Farmland's Lawrence facility and became familiar with the acid, ammonia, and urea areas of the plant. Whitten states that William Hutton (hereinafter "Hutton"), a former maintenance superintendent, persuaded him to accept an offer in 1980 to become a maintenance foreman in the nitrate division. Hutton stated that foremen enjoy the same rights and benefits that union employees possess by virtue of their collective bargaining agreement.² Hutton, Burgen and others repeatedly advised Whitten over the course of ten years that "Farmland takes care of its supervision." Whitten's supervisor, Al Pavlicek (hereinafter "Pavlicek"), informed plaintiff that he would remain with Farmland until he retired. Whitten held the position of maintenance foreman until he was fired in 1986. He was fifty-one years old at the time of his termination.

Warren began his employment with Farmland as a "checker" in defendant's Lawrence facility in 1953. He subsequently moved into the purchasing and warehouse department, where he held various positions until 1962. In 1962, Warren became a mechanic in the maintenance department. During his tenure as a mechanic, Warren worked primarily in the nitrate division. When he was offered a position as maintenance foreman in April of 1979, Warren was assured by Burgen that management "takes care of our own people." Burgen also promised Warren that his seniority with the Oil, Chemical and Atomic Workers International Union (hereinafter "the union") would be preserved if he accepted the position of foreman. Plaintiff says he was led to believe that he would be "moved back ... or transferred back into another job" in the case of a RIF. Warren now believes that Burgen lied because he could not convince any other union employees to take the job. He also thinks that the others who promised the company would protect him knowingly conveyed false information to him. Warren remained a foreman until December of 1986. He was fifty-one years old at the time of his discharge.

Fenstemaker began his employment with Farmland as a laborer at the Lawrence plant in 1958. In 1966, Fenstemaker became a mechanic in the maintenance division. He also worked in the ammonia section. Eleven years later, plaintiff accepted a promotion to foreman of the maintenance department. Fenstemaker initially rejected the offer for promotion, but accepted it after he was informed that salaried employees would "be the last to go" in the event of a plant shut-down. Fenstemaker was told by a supervisor, Bud Sutton (hereinafter "Sutton"), that he had "too much potential to remain an hourly worker" and he should "come over to the management side." Sutton and Hutton repeatedly assured Fenstemaker that "Farmland takes care of its salaried people." Plaintiff was assured his job security would be as good or better in management, compared to the hourly union ranks. Plaintiff worked as a foreman until he was discharged in December of 1986. Fenstemaker was forty-nine years old when he was terminated.

Plaintiff Bonham was hired by Farmland in September of 1963. He also began as a laborer in Lawrence. He was offered a foreman position in the nitrate section of the production department in December of 1976. When plaintiff asked how the "promotion" would affect his seniority rights, Harold Lewis, the nitrate superintendent at that time, informed Bonham that he "didn't have to worry about seniority." Lewis added that the company never laid off foremen and he didn't think they ever would lay them off. Fred Jacobson (hereinafter "Jacobson"), a supervisor in the nitrate plant, informed plaintiff sometime prior to 1983 that the company would find something for him in the event of a reduction in force. John Leak (hereinafter "Leak"), another Farmland employee, also stated that the company would take care of plaintiff in the event of a RIF. In 1983, Bonham was transferred to the urea section where he served as a foreman until the time in which defendant terminated his employment. Bonham was forty-four years old when he was discharged.

In August of 1986, John Harwell (hereinafter "Harwell"), defendant's vice president, advised George Haney (hereinafter "Haney"), the general manager of nitrogen operations at Farmland, that the number of employees in the nitrogen division would have to be reduced. Haney subsequently provided his plant managers with guidelines for the reduction in force. The guidelines instruct plant managers to "have a bias for expertise and proven loyalty." The guidelines state that those who are selecting which employees to terminate should "keep in mind that long-term employees generally are more knowledgeable and more valuable employees." In addition, plant managers were advised that employees within the protected age group and those who have five or more years of experience should not be terminated unless there is a "good reason."

Haney determined that only six of the ten foremen at the Lawrence plant could be retained, but left the responsibility of selecting the four who must be terminated to Donald Clark (hereinafter "Don Clark"), the plant superintendent, and Jerry Burgen (hereinafter "Burgen"), a maintenance supervisor. Burgen and Clark decided that John Swenson (age 46), Bill Gurley (age 47), Howard Bruce (age 54), Larry Mages (age 64), Marvin Bailey (age 59), and Don Engel (age 50) would be permitted to stay at Farmland. Engel was demoted from a supervisor's position to one of the remaining foreman positions. The job functions previously performed by Warren and Whitten were assigned to Engel. Defendant states that Swenson was retained because he had more experience. Plaintiffs point out that Swenson had only served as a supervisor when no one else was available. Plaintiff Whitten, by contrast, had long been a foreman. Whitten was equally qualified for the position awarded to Swenson, according to Don Clark.

The company determined that one of the foremen in the urea division must be discharged. Don Clark, with the assistance of William Jennings (hereinafter "Jennings"), the urea supervisor, and Roy Scherff (hereinafter "Scherff"), a former superintendent who had just been assigned to the urea division, decided to retain Ed Reid (age 39), J. Reusch (age 39), Jerry Rockers (age 45), and T. Wistuba (age 44), and discharge Bonham (age 44). Defendant states that Bonham was terminated because he had less experience in the urea area and was "somewhat ill-at-ease at supervising people." Reid was later transferred to the nitrate and acid sections of the plant. Reusch was moved to the nitrate section after the RIF.

The employees who were terminated pursuant to the second phase of the RIF were informed of their discharge at the company's front office on the morning of December 30, 1986. After announcing the discharges, Don Clark informed the group that they would be considered for recall or rehire. He added that they would be called back if Farmland's financial condition turned around and jobs opened up. Phyllis Reynolds testified that the men normally would be considered for rehire in the absence of a discharge for cause. When positions became available as a result of the retirement or resignation of other employees, however, Farmland promoted younger employees to fill those vacancies. The company contends that the positions were filled pursuant to a management training program. Defendant's management and...