Witschger v. E. I. DuPont De Nemours & Co., Case No. 1:11-cv-814-HJW

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtHerman J. Weber
PartiesDONALD L. WITSCHGER Plaintiff v. E. I. DUPONT DE NEMOURS AND COMPANY, et al, Defendants
Decision Date03 June 2013
Docket NumberCase No. 1:11-cv-814-HJW


Case No. 1:11-cv-814-HJW


Dated: June 3, 2013


Pending are the "Motion for Summary Judgment" (doc. no. 20) by defendant E.I. DuPont De Nemours Company ("DuPont") and the "Motion for Summary Judgment" (doc. nos. 24) by defendant Troy Electric, Inc. ("Troy"). Plaintiff has filed a single combined brief in opposition. The defendants have each submitted "Proposed Findings of Fact and Conclusions of Law," which plaintiff has highlighted as true, false, or irrelevant (doc. nos. 28, 29). Having fully considered the record, including the parties' briefs, proposed findings, and applicable authority, the Court will grant both motions for the following reasons:

I. Background and Procedural History

The following facts are largely undisputed. Any exceptions or disputed "characterizations" will be noted and discussed herein. DuPont hired Donald Witschger ("plaintiff") on August 16, 1984 as a Limited Skilled Employee ("LSE") on a temporary basis at $6.80 per hour at its Fort Hill plant.1 The Fort Hill plant is located in North Bend, Ohio, and is a small plant with approximately 20

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employees. The Fort Hill plant produces sulfuric acid products and is part of DuPont's overall "DuPont Chemical Solution Enterprise ("DCSE") group. Plaintiff was laid-off for a short period of time, but rehired in 1985. He was hired back as a "contract employee" and received his paychecks through a payroll service ("Franklin") (Ellis Dep. at 13). For the next twenty years, he worked as an unskilled general laborer performing a wide variety of tasks, such as janitorial work (sweeping, clean-up, taking out trash), painting, moving equipment, receiving packages, oil changes on vehicles, cutting grass, and shoveling snow. By all accounts, plaintiff performed his duties well and had no disciplinary issues.

Troy Electric, Inc. is a Cincinnati-area electrical contractor owned and operated by Tim Sneed. Beginning in the mid-1990s, DuPont contracted with Troy to perform electrical work at the Fort Hill plant. In 2007, DuPont was having "issues with people getting paid" by Franklin, and thus, DuPont area manager Robert Ellis approached Sneed and asked Sneed to put plaintiff on Troy's payroll (Brown Dep. at 16; Ellis Dep. at 12-14). Sneed agreed. Thereafter, plaintiff completed weekly time sheets for Troy and received his paycheck from Troy. As of 2010, plaintiff's rate of pay was $26.02 per hour (doc. no. 20-3 at 16). Troy billed DuPont for the work done by Troy's employees at the plant (doc. no. 22-2 at 101).

By October 2008, the United States was experiencing a serious recession. As a result of the downturn in the economy, demand for DuPont products was very low. DuPont indicates that its customers delayed or cancelled $100 million in orders in the fourth quarter of 2008 alone (doc. no. 20-5 at 42). By February 2009, the plant was operating only at about 60-65% productivity (Id. at 89). In order for

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the DCSE division (including the Fort Hill plant) to survive, DuPont announced plans to substantially reduce costs and contractor headcount. In 2009, directives from DuPont's corporate headquarters repeatedly emphasized the need to further reduce costs. Plaintiff does not dispute this (doc. no. 29 at 3, ¶¶ 10-12).

As instructed, Eric Brown, Fort Hill's plant manager, made necessary reductions. By November 2008, he reduced the plant's ten contractors down to seven (doc. no. 29 at 3, ¶ 11a). When DuPont informed plant managers that more needed to be done "to absorb job duties with current employees and further reduce contractor numbers" (¶ 11c), Mr. Brown advised personnel that he had been asked to "take a hard look at what we're doing and scale back wherever possible" (¶ 11d). On December 4, 2008, DuPont instructed plant managers to "[i]mmediately and drastically reduce spending . . . redeploy DuPont employees to replace contractors" (¶ 11e). Mr. Brown then reduced the Fort Hill plant down to six contractors (¶ 11f).

These directives to reduce expenses continued in 2009. A January 2009 directive instructed plant managers to only bring back persons "with critical skills you need to safely operate" (¶ 12; doc. no. 20-5 at 86 "we have reduced 750 contractors from a starting point of over 1400"). A February 2009 directive indicated "business has not improved . . . we have a new target - by the end of March - to get under 500 contractors" (Id. at 90). A June 2009 directive indicated "there is still a tremendous push on contractors. . . we have a goal to be at 442 contractors . . . we are at 497 . . . I am asking each of you to look again . . . It is critical - not just for the 2nd quarter, but also for 3Q and 4Q also" (Id. at 111). A

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July 2009 email with multiple directives indicated that "due to a very weak global economy, we saw significantly reduced demand" (Id. at 131). It further indicated that "looking to the second half of 2009, we will stay the course on the Four Directives" which included targeted cost reductions (Id. at 132). Due to the recession, the Fort Hill plant's use of Troy Electric was "reduced down from two or three electricians down to one at times" (Brown Dep. at 47). In early 2010, DuPont advised plant managers that "contractors will continue to receive significant attention in 2010" (doc. no. 20-6 at 10) and repeatedly reminded them to update "contractor count" spreadsheets (Id. at 10-20).

In response to these repeated corporate directives, Mr. Brown indicates he made reductions, but did not initially select plaintiff (Brown Dep. at 29). He explains that plaintiff had told him in 2009 that he intended to retire in early 2010 when he reached age 65 (Id. at 27, 31-32). Plaintiff acknowledges that "I was thinking of retiring, checking it. I had to check in and see how much money I was going to get" and that in 2009 "he had talked to several people [at DuPont] about it" (Witschger Dep. at 131-132). Mr. Brown indicates he sought to retain plaintiff until his planned retirement date of January 31, 2010 (Brown Dep. at 52).

In September of 2009, Mr. Brown learned that new federal regulations -- the Chemical Facility Anti-Terrorism Standards ("CFATS") -- required the plant to hire four to five security personnel for 24/7 security (doc. no. 20-5 at 133; 20-6 at 5). The Fort Hill plant was affected by these regulations because it produces chemicals that the Department of Homeland Security ("DHS") deems a potential

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security risk.2 Plaintiff lacked the skills to be hired for such positions. Mr. Brown had to seek approval for this necessary exception to the directives for cost reductions (doc. no. 20-6 at 8-9). This extra expense put even more financial pressure on the plant.3 In his planning for Fort Hill's 2010 budget, and given previous discussions with plaintiff about his intention to retire, Mr. Brown did not include money for plaintiff's position in the 2010 budget (Brown Aff. ¶ 10).

Just before turning 65 on January 31, 2010, plaintiff received his Social Security card and estimate of benefits (Witschger Dep. at 133-134, indicating he went to the Social Security office in January 2010 and "asked them about how much money was I going to get. That's when I found out I ain't going to have the money"). He acknowledges that he realized he "wouldn't be able to afford to retire on it." (Id. at 161). When Mr. Brown asked plaintiff in January 2010 about retirement (Brown Dep. at 32), plaintiff indicated he could not "afford" to retire (Witschger Dep. at 137 "I says, I ain't going to receive enough money, you know, to be able to afford to retire."). Mr. Brown advised plaintiff that his position was not in the budget for 2010 (Brown Dep. at 32-33; Witschger Dep. at 137). When plaintiff indicated he would not get his first Social Security check until the end of February, Mr. Brown agreed to keep plaintiff for one more month until his Social

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Security checks started arriving (Brown Dep. at 32-33). Mr. Brown advised Troy that DuPont would no longer be needing plaintiff's services, and in turn, on February 26, 2010, Mr. Sneed informed plaintiff that his employment was terminated due to "reduction in force" for lack of work (doc. no. 20-3 at 21).4 Meanwhile, the plant held a retirement party for plaintiff, and he received gifts (a card and money) at the dinner (Witschger Dep. at 148-149, 179 "it was big dinner, I mean, a steak dinner").

In April of 2010, plaintiff filed an EEOC complaint against DuPont, alleging that he was terminated because of his "age" (doc. no. 20-3 at 19). A notice of suit rights was mailed to plaintiff on July 15, 2011 (doc. no. 22-3 at 78). On October 12, 2011, plaintiff filed a complaint in the Court of Common Pleas for Hamilton County, Ohio. He asserted 1) a federal claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., against DuPont; 2) a state claim of age discrimination pursuant to Ohio R.C. § 4112.14(B) against both defendants; 3) a state claim of age discrimination pursuant to Ohio R.C. §§ 4112.02 and 4112.99 against both defendants; and 4) a state claim of intentional infliction of emotional distress against both defendants.

DuPont removed this case to federal court on November 17, 2011, on the basis of federal question jurisdiction, 28 U.S.C. § 1331, for plaintiff's ADEA claim against DuPont, and supplemental jurisdiction, 28 U.S.C. § 1367, for plaintiff's state law claims against both...

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