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BRINK v. UNION CARBIDE CORP.

February 18, 1999

DONALD W. BRINK, PLAINTIFF,
v.
UNION CARBIDE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Owen, District Judge.

OPINION AND ORDER

Plaintiff Donald W. Brink, terminated by his employer Union Carbide Corporation, alleges (1) employment discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), the New York State Human Rights Law, N.Y. Exec. Law § 296(3-a)(a), and the Connecticut Human Rights and Opportunities Act, Conn. Gen.Stat. § 46a-60(a)(1); (2) a violation of the Employee Retirement Income Security Act, 29 U.S.C. § 1140; and (3) breach of contract for employment during worklife expectancy. Carbide disputes this, asserting that Brink was an at-will employee whose termination occurred during a major, prolonged down-sizing and was arrived at by ranking the entire 15-member unit on the basis of abilities without reference to age. Carbide moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

On November 22, 1976, Carbide hired Brink, then 43 years old, to work at Carbide's New York City office as a Business Intelligence Analyst in its Chemicals & Plastics division. Brink and Carbide signed a Memorandum of Employee's Agreement, which stated "THIS AGREEMENT does not, of course, bind either party to a specific period of employment." Brink was a participant in Carbide's pension plan, with pension benefits flowing from a combination of the employee's salary, years of service, and age.

Brink was promoted to Senior Project Administrator in 1978. In 1979, he was transferred from the Chemicals & Plastics division to an overall corporate level and was promoted to Staff Assistant for Investor Relations. In 1981, Brink was transferred to the corporate Financial Planning & Analysis group ("FPA"), located at Carbide's Danbury, Connecticut headquarters and Brink moved his home to Connecticut. There, he held the position of Senior Analyst.

In 1985, Carbide began a lengthy restructuring in which it sold or spun off numerous divisions, such as home, automotive and battery. This greatly reduced its need for financial analysts. Controlling interests in other divisions, such as Carbon Products, were also sold. In 1985, Brink was offered a voluntary separation program, which he refused. By 1990, only two divisions remained: Chemicals & Plastics and Industrial Gases (known as Linde). At that point, corporate FPA was consolidated with the FPA from the Chemicals & Plastics division, resulting in one FPA group. Brink, who was approximately 57 years old at the time, was retained in the consolidated FPA, and his primary responsibilities became competitive analysis and external reporting. His competitive analysis work, which occupied slightly more than half of his time, included comparing Carbide and its individual businesses "with similar businesses that are in the chemical industries and the oil industry." In 1991, plaintiff's competitive analysis work involved preparation of two different reports, an executive compensation report and a competitive analysis report for Carbide's remaining two businesses. In preparing these reports, Brink was assisted by two other FPA employees, Deanna Gayer and Joe Agresta. Plaintiff's external reporting work, which occupied slightly less than half of his time, included assisting in the preparation of the corporation's annual report, SEC filings and other documents necessary for stockholder disclosure. As the only FPA employee working on external reporting, plaintiff's role involved assisting other departments, such as Carbide's communications law, and corporate accounting departments.

In early 1992, Irving Agard was the director of FPA. Below Agard were four managers, one of whom, Richard Fronapfel, was Brink's immediate supervisor. FPA's hierarchy was as follows:

                                      Irving Agard
                                        Director
    Richard Fronapfel         Ronald Oliveri    Robert Morales       Paul Davis
        Manager                  Manager           Manager          Assistant Dir.
  Donald Brink (plaintiff)     Henry Vega        Cindy Chen         Deanna Gayer
         Analyst                 Analyst           Analyst         Financial Assoc.
     Joseph Agresta            Lori Davlos    Warren Baudendistel
         Analyst                 Analyst           Analyst
                            Marilyn Posavetz     Ralph Racey
                                 Analyst           Analyst

The most recent addition to FPA was Lori Davlos, who had been transferred from Carbide's West Virginia office in January of 1992 to do cash-flow analysis.

In 1991, Carbide announced plans to further downsize by spinning off the Industrial Gases division. This would leave it with only one division, Chemicals & Plastic. That announcement, along with internal talk about a $250 million cost-reduction program, led Agard to realize that the size of his department would soon need to be reduced. Accordingly, in early 1992, he set up a plan to have his FPA staff members ranked by their managers.*fn1 This was done on a scale of one to five (with one being the lowest and five being the highest)*fn2 in six categories: ability, effectiveness, versatility, value to continuing business, uniqueness, and reassignment potential. Neither age nor seniority were categories. Their ratings in those categories were then totalled. The final ranking was as follows:

Bank             Name                  Rating
  1             Lori Davlos               25.3
  2             Henry Vega                24.3
  3             Ralph Racey               20.7
  4(tie)   Donald Brink (plaintiff))      20.3
  4(tie)       Joseph Agresta             20.3
  6           Marilyn Posavetz            18.7
  7          Warren Baudendistel          18.0
  8              Cindy Chen               17.3*fn3

*fn3 The ages, employment grades, salaries for years of service of those rated, did not appear on the ranking chart. This information was provided to the Court calculated as of the date plaintiff was informed of his termination, June 22, 1992.

Rank     Name                       Rating   Age  Emp.Grade   Salary   Years of Service
    1      Lori Davlos                 25.3     36      12      61,980       14 years
    2      Henry Vega                  24.3     48      14      79,320       15 years
    3      Ralph Racey                 20.7     49      14      83,280       25 years
  4(tie)   Donald Brink (plaintiff)    20.3     59      14      85,440       15 years
  4(tie)   Joseph Agresta              20.3     63      15      93,360       30 years
    6      Marilyn Posavetz            18.7     39      12      66,360       16 years
    7      Warren Baudendistel         18.0     51      14      79,020       33 years
    8      Cindy Chen                  17.3     51      12      70,320       15 years

With the ranking completed, Agard did not immediately make any decisions regarding who would be terminated. He first contacted the division controllers and other staff groups to inquire whether they might have openings for any of his staff. Agard had some difficulty here because a number of his FPA analysts (including Brink) were at a higher grade level (14) than analyst vacancies or needs existing in other departments. For instance, Agard described in his deposition the following discussion with Nick Thold in the Investor Relations department:

  Nick Thold indicated to me that he had an employee
  working for him who was a grade 10. The employee
  wanted to retire and he felt he had to fill the job.
  He wondered if I had any candidates who were
  available for that job. I gave him the list of all
  the candidates that I had which was, in effect, I
  offered up everybody in my organization and said, you
  know, are any of these people acceptable to you. He
  said Don Brink used to work in my organization, I
  know Don, and he said I would like to talk to Cindy
  Chen. He talked to her and said she would be perfect
  for the job, and I said but Don did the job before.
  He said this is a grade 10 job. He said I think I can
  add enough to that job to make it a grade 12 but I
  can never justify a grade 14 on the job.

Thus, Chen was placed with Investor Relations. Similarly, Marilyn Posavetz was placed as a financial analyst with the Industrial Gases division; a manager in that division had "indicated that the highest grade experience they could afford for the job was a grade 12 person". A third FPA staff member, Warren Baudendistel, who did have a Grade 14, was placed with another controller who chose him specifically. This left Agard with five FPA staffers — Davlos, Vega, Racey, Brink, and Agresta, in order of their ranking — along with Deanna Gayer. The expected division-wide reduction in force came to pass in May 1992 as part of a fifty percent cost reduction target for the controller's organization. Agard decided to keep the two top-rated analysts — Davlos and Vega — and to "surplus" Brink, Agresta, and Racey. Gayer and her manager, Davis, were also eliminated. On June 22, 1992, Brink was informed that he was to be terminated, effective August 31. In total, Mr. Agard reduced his staff from 15 to 5 including terminating a manager and an assistant director, leaving the following people of various ages:

I. Agard (45)

R. Fronapfel (53) H. Vega (48) L. Davlos (36) R. Morales (45) This left Carbide, which had had 117,000 employees in 1985, with but 16,000 in mid-1992.*fn4

Notwithstanding the foregoing rather ordinary sequence of events in a lengthy major corporate down-sizing and restructuring, Brink contends that he has stated a prima facie case of age discrimination in his termination.*fn5 He argues that three alleged ultimate fact contentions create material issues supporting the conclusion of discrimination against him by Carbide because of his age. The first is that when the FPA unit was reduced in size, Director Agard found slots elsewhere in Carbide for three younger employees (two aged 51 and one 39), but not for him. Brink's second factual assertion is that the ranking procedure utilized was pretextual and, he contends, "an exercise in deliberate deception."*fn6 The third ultimate factual assertion, which is Brink's main contention, is his assertion that the transfer into FPA of Lori Davlos, a younger employee of unknown skills and little competence, to do work he could have done,*fn7 with a lower grade and salary, (and her retention at and after the time of his termination) is evidence that age discrimination was the motivating factor behind Brink's termination and not the legitimate restructuring which Carbide claims.*fn8

Turning to Brink's first claim [notwithstanding all of his many record references at the top of page 12 of his memorandum], he proffers no evidence to create an issue as to the bona fides of Agard's efforts to find slots elsewhere for everyone, including Brink, whom Agard felt he had to surplus in the restructuring,*fn9 nor does Brink dispute that the reason Agard was able to find slots for three of his staff was because they were at lower grades and salary levels. When a corporation does a massive restructuring, some employees will necessarily be surplussed or transferred but this fact "is not indicative of age discrimination." Morser v. AT & T Info. Systems, 703 F. Supp. 1072, 1083 (S.D.N.Y. 1989) (quoting Dabrowski v. Warner-Lambert Co., 815 F.2d 1076, 1080 (6th Cir. 1987)).

Brink next asserts an issue of material fact as to age discrimination from Agard's ranking procedure and claims "pretext" and "deliberate deception." He asserts no facts, however, to support a claim that the ranking process Agard utilized was not fairly and objectively done. At the core of Brink's attack is a repetitious denigration of the skills and background of Lori Davlos, who had been transferred from Carbide's West Virginia office, into the FPA unit shortly before its members were rated, she was retained and not transferred to another unit until some two years later, a year and a half after Brink was surplussed. Brink's numerous assertions as to her must be quoted in order to be addressed. He asserts that Davlos had been added to the FPA staff ". . . under the guise of performing the specialized task of cash flow analysis[,]"*fn10 notwithstanding "deficient skills"*fn11 and "deficiencies in [her] qualifications and performance",*fn12 and "knowledge of weaknesses in her qualification . . ."*fn13 and that despite "little relevant experience,"*fn14 she was "transferred . . . [into] FPA and then transferred [out] because . . . of deficiencies in her mathematical and computation abilities"*fn15; and that Agard "was forced to rid FPA of her . . ."*fn16 and that she "had to be eliminated . . . and replaced because . . . `she did not have the strong mathematical quantitive kind of skills'[*fn17] required by FP & A."*fn18

However, upon close examination of the depositions and other uncontradicted evidence in the case, it is clear that the attack on Ms. Davlos is completely contrary to the record, and includes misleading editing of one sentence of deposition testimony by Agard. (See fn 17 supra). The record shows that Agard brought her in because of her known, experienced background; that she was a fine, productive employee; she brought several major tasks of considerable value to the company into line, and performed them in much less time than theretofore required by those before her. This is all laid out in Agard's testimony which is set forth hereafter in Appendix A. Davlos had come from Carbide's West Virginia office to do cash flow reporting analysis — a field in which Brink did no work — and her reputation had preceded her.*fn19 Fronapfel testified she was very much needed.*fn20 That work, as to which she had substantial background, (See Appendix A, p. 20), had, prior to her arrival at FPA, been done by two members of FPA, Ralph Racey and John Nelson. Nelson had left, and upon Davlos' arrival, she and Racey worked full-time on cash flow. Then, after the ranking process, she being higher than Racey, she took over the entire responsibility for cash flow and Racey was surplussed. As time went on, she got the cash flow task down to where she was only spending 30 to 40 percent of her time on it. She was then put on project analysis for the remaining 60 to 70 percent of her time. There, according to the uncontradicted testimony of Agard, she did a "very thorough" analysis, finding various discrepancies and making recommendations on how to correctly do employee plans and expenses so that plants and divisions were uniformly being charged with what it was really costing each one. She was also spending "a lot of time working on the construction program and the investment program" where she was concerned about inventory for each business, each of which had theretofore calculated inventory for analytical purposes in different manners. She corrected this and got everybody using the same approach and Agard deemed her the "main player" in the consolidation of the annual business plan and strategic plan, and financial forecasters.

In the construction program, Davlos provided the data to Agard, who then discussed it with Carbide's president, who then worked it into a presentation to the board of directors. Having gotten all this in place, and having gotten the cash flow work down to 30 to 40 percent of her time, Davlos in 1994, a year and a half after Brink's departure, turned the cash flow work over to Dominic Nocturne. Here, it was anticipated that when he got over his learning curve, he would spend no more than 30 to 40 percent of his time on cash flow analysis and would, in addition, do specific project work involving looking at strategic performance plans and metric and targets fields of the corporation and then individual businesses. For this specific project Davlos did not have the requisite qualifications. Davlos was then transferred to the chemicals division.

The foregoing completely undercuts Brink's attempted denigration of Davlos' skills, and with that gone, Brink's attack on the forced rating fails,*fn21 as does his attack on FPA bringing Davlos in to do cash flow and then subsequent important work.*fn22

Summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R Civ. P. 56(c). Whether a fact is material is determined by reference to the substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden is on the moving party to demonstrate that there are no fact issues to be resolved. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must then come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (nonmoving party must base its showing on some evidence other than mere pleadings). Summary judgment will not be barred when the nonmoving party's evidence is "merely colorable" or "not significantly probative". Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

I turn first to Brink's claim under the Age Discrimination in Employment Act ("ADEA"), the New York Human Rights Law, and the Connecticut Human Rights and Opportunities Act.*fn23 All three are assessed under the same analytical framework applicable to Title VII cases that is set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and subsequent Supreme Court cases addressing the McDonnell Douglas test. See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (ADEA); Spence v. Maryland Cas. Co., 995 F.2d 1147, 1158 (2d Cir. 1993) (age discrimination claim under New York Human Rights Law is governed by same standards as ADEA claim); Levy v. Comm'n on Human Rights and Opportunities, 35 Conn. App. 474, 646 A.2d 893, 896 (1994), aff'd 236 Conn. 96, 671 A.2d 349 (1996) (Connecticut antidiscrimination statute adjudicated according to federal employment discrimination law).

While at the first stage, to make out a prima facie case of age discrimination, a plaintiff need only show that (1) he is a member of a protected age group, (2) he was qualified for the position he held, (3) he was discharged, and (4) the discharge took place under circumstances giving rise to the inference that age was a factor. See, e.g., Woroski, 31 F.3d at 108, and at that first stage, plaintiff's burden is a de minimis one. However, as catalogued in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en banc), cert. denied, ___ U.S. ___, 118 S.Ct. 1341, 140 L.Ed.2d 501 (1998), a plaintiff's burden at the present advanced stage of this case is no longer de minimis.

  The burden-shifting presumption excuses the plaintiff
  at [the first] stage from showing that discrimination
  was present and caused the adverse employment action
  plaintiff suffered. If the plaintiff submits evidence
  of the minimal elements of the special discrimination
  prima facie case . . . [,] the remaining elements
  (discrimination and causation) are presumed at this
  stage of the litigation, and defendant must take up
  the burden of going forward.
  But . . . the presumption disappears once the
  employer has proffered a reason. When the
  presumption drops away, plaintiff's burden is
  enlarged to include every element of the claim.
  Discrimination and cause are no longer presumed. To
  sustain the burden of putting forth a case that can
  support a verdict in his favor, plaintiff must then
  (unlike the prima facie stage) point to

  sufficient ...

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