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Edgar Mitchell, et al. v. Mg Industries

September 30, 2011


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiffs Edgar Mitchell, John Muller and Joseph Cherneski bring employment discrimination claims against Messer Griesheim Industries, Inc./ALIG LLC (MG), and its three successors in interest, L'Air Liquide S.A., Air Liquide Industrial U.S. LP, and Air Liquide Large Industries U.S. LP, pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626 et seq. and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 961 et seq. Plaintiffs allege MG discriminated against them on the basis of age by not inviting them to participate in a one-time investment opportunity MG offered to certain of its employees in October 2001. In addition, Muller alleges MG retaliated against him for filing ADEA charges with the Equal Employment Opportunity Commission (EEOC) by denying him severance benefits.

Defendants ask this Court to grant summary judgment in their favor on all claims, asserting Plaintiffs' discrimination claims are time-barred and are legally insufficient in any event because MG's failure to invite Plaintiffs to participate in the investment opportunity was not an adverse employment action. As to Muller's retaliation claim, Defendants assert it is not unlawful retaliation to abide by a uniform policy which requires those employees entitled to severance benefits to sign a general release of all claims in exchange for the severance.

For the following reasons, Defendants' motion will be granted in its entirety. FACTS*fn1

In 2001, MG was owned by Messer Griesheim GmbH (Messer), a worldwide industrial gas company headquartered in Germany. In April 2001, Allianz Capital Partners (Allianz) and Goldman Sachs (Goldman) became major shareholders of Messer. Their interest was in seeing their investment in Messer increase in value over the next several years, and their intention was to sell their Messer shares in three to seven years. On October 1, 2001, as an incentive to improve Messer's overall profitability and to enhance MG's value and ability to retain certain employees to ensure MG achieved its financial objectives for the sale, MG, through Messer, invited a number of its employees by e-mail to participate in a one-time discretionary investment opportunity, the Messer Investment Program (MIP). The MIP was intended "to increase the motivation and retention of [MG's] management team" by offering "a select group of managers an opportunity to participate in the Company's success by becoming stockholders of the Company." Roll-Out Workshop Management Investment Program (MIP) Handout. Messer advised MG's President, James Doerr, that the program was an opportunity to be offered to employees (managerial or not) who "would be critical to making or achieving the financial objectives of the company." Pls.' Resp. 14. An employee could be "critical" even if no one reported to him or her. Pls.' Resp. 14.

Doerr charged MG's General Counsel and Vice President of Human Resources, James Anderson, with oversight of the selection process. Anderson, assisted by MG's Director of Human Resources, Mike Savage, was to ensure the selection criteria were consistently applied and compliant with anti-discrimination and equal opportunity laws. General Managers (GMs) of each of MG's five divisions, and the Vice Presidents who reported to them were automatically invited to participate in the MIP. Each of the five GMs was then to propose additional candidates for participation from within their respective divisions. Thus, for the Bulk Products Division, in which all three Plaintiffs were employed as sales representatives, GM Wayne Harman, was responsible for recommending candidates for the MIP. Harman could have consulted with his direct report, David Esposito, the Vice President within the Bulks Products Division, regarding the selection process; however, there is no evidence Harman ever did so. Although the selection of additional candidates was essentially a group decision among the five GMs, the GMs generally deferred to each other's recommendations regarding the proposed candidates from within their respective divisions.

In deciding whom to recommend for the MIP within the Bulks Products Group division, Harman used his own discretion and based his decisions on his own personal judgment and understanding of what the various business units within the Division were doing, each employee's responsibilities and experiences, and the ultimate goals of the MIP strategic plan. Harman testified he "identified the skill sets and positions [he] felt were most critical and created a list." Harman Dep. at 141:8-9. He also conducted "contingency planning" for individuals who could readily fill positions "should some absences occur later on that needed to be filled, so [he] had the people executing today as well as some bench strength to draw on . . . ." Id. at 141:10-16. Importantly, Harman felt sales representatives such as Plaintiffs could not significantly impact his division's profitability with respect to the MIP's overall three to seven year timeframe because MG's bulk products customers were generally subject to long-term contracts with seven-year terms. As a result, Harman recommended only one bulk products sales representative who "had been in applied technology,*fn2 [and] . . . had leverageable skills that the corporation could use in other roles beyond what he was currently doing as a contingency plan for what we might need to achieve . . . over the next three to five years." Id. at 305:15-22.

The MIP was entirely voluntary, as it came with significant requirements and also carried significant risk. Those who opted to participate in the MIP were required to invest a minimum amount equal to one-third of their annual salary, which would be used to purchase Messer stock. The investment amount had to be paid in cash, and each participant was required to use personal funds. Moreover, participants had to decide whether to make this appreciable cash outlay by January 1, 2002 -- mere weeks after the program's announcement -- which coincided with the period of high market volatility in response to the events of September 11, 2001. Messer shares purchased through the MIP could not be sold, and the investment, therefore, could not be liquidated until there was an "exit" event in which Allianz and Goldman sold their Messer shares. If a participant were to retire prior to such an event, the participant would receive the pro-rated fair market value of his shares as of the time of retirement, although payment would not be received until the time of the exit event. The purchase price was denominated in Euros, as Messer was based in Germany, so returns to U.S. participants could be adversely impacted by currency fluctuations. Participants were warned that the program was at their own risk; there was no guaranteed return on the MIP. Of the 70 employees who were offered the opportunity to invest in MG's stock, only about half -- 34 -- elected to participate. The investment made MIP participants direct shareholders in the company.

As a matter of company policy, the financial information and program details of the MIP were to be kept confidential and were not to be openly discussed with employees who were not selected for the program. According to Doerr, "like any benefit program or salary or bonus, . . . it was between the company and the individual." Doerr Dep. 377:19-21. Accordingly, a special informational meeting was held off premises at a nearby hotel on October 8, 2011 for the selected employees. Notwithstanding MG's efforts to keep the MIP confidential, by October 4, 2001, just three days after the invitation email was sent, Mitchell called Muller to ask him what he knew about the so-called MIP. By October 11, 2001, the two men learned the MIP was an investment program, knew the names of some of the invitees, were aware a meeting had been held for those invited to participate, and by default, knew they had not been selected to participate in the MIP.

In 2004, the "exit" event occurred when the stock of Messer, MG's parent company, was sold to a French industrial gas company. MIP participants profited from the sale.

On May 12, 2004, Plaintiffs each filed a Charge of Discrimination with the EEOC and the PHRC, and subsequently received a Notice of Right to Sue from the EEOC. OnJuly 29, 2005, Plaintiffs filed the instant suit, alleging their non-selection for the MIP based on age constituted an adverse employment action in violation of the ADEA and the PHRA. Muller filed his separate claim for retaliation on the same date, alleging he was denied his severance benefits in retaliation for filing his ADEA complaint.


A motion for summary judgment shall be granted "if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To defeat such a motion, the opposing party "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation and internal punctuation omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'" Id.

Defendants first argue they are entitled to summary judgment because Plaintiffs knew about the MIP in October 2001, within days after it was announced, yet failed to file charges with the Equal Employment Opportunity Commission (EEOC) within the prescribed 300 days, instead filing charges more than 950days later on May 12, 2004. Plaintiffs agree Mitchell and Muller were aware of the MIP "more than 300 days before they filed charges with the EEOC," Pls.' Sur-Reply 3, but argue their claims are nevertheless timely because neither of them became aware of the alleged reason why they were not selected for the MIP -- their age -- until Fall 2003, shortly after which they filed their EEOC ...

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