Opinion
Case No. 5:04 CV 2451.
October 3, 2005
MEMORANDUM OPINION
This Matter is before the Court on the Motion of the Defendants, FirstEnergy Corp. and the Cleveland Electric Illuminating Company, for Summary Judgment. (ECF #13). For the reasons that follow, Defendants' Motion is granted.
PROCEDURAL AND FACTUAL BACKGROUND
The factual summary is derived from the parties' statements of fact. Those material facts which are controverted and supported by deposition testimony, affidavit or other evidence are stated in the light most favorable to Plaintiff, the non-moving party.
Pursuant to the request of the parties, this case has been procedurally bifurcated allowing the Court to address the validity of the Agreement to Release in Full (the "Release") signed by the Plaintiff before the case proceeds further. The First Amended Complaint sets forth four causes of action: (1) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1); (2) violation of ERISA's anti-cutback provisions involving the calculation of the Voluntary Retirement Benefit ("VRB") in violation of 29 U.S.C. §§ 1053(e)(2) and 1055(g)(3); (3) promissory estoppel relating to the Defendant's acceptance of Plaintiff's rejection of the VRP; and (4) a claim that Defendant violated the knowing and voluntary waiver provisions of the Older Workers Benefit Protection Act ("OWBPA") thus voiding the release signed by the Plaintiff.
These claims arise out of the Plaintiff's termination from employment pursuant to a reduction in force ("RIF") that took place in January, 1998. The RIF resulted from the 1997 merger of the Ohio Edison Company and Centerior Electric Corporation (and its subsidiary Cleveland Electric Illuminating Company ("CEI")) that led to the creation of the Defendant FirstEnergy Corp. After the merger, FirstEnergy embarked on the RIF to eliminate duplicative administrative functions.
Plaintiff worked for CEI for more than 34 years, beginning as a construction helper at age 19 and moving up to Groundman, Lineman, Line Mechanic, Line Mechanic Leader and in 1990, to Supervisor of a Line Multi-Crew. FirstEnergy informed its employees that it would make reductions in the first instance through a Voluntary Retirement Program (VRP) which included incentives for employees to retire early. Thereafter, FirstEnergy would complete the RIF through involuntary terminations. Plaintiff initially elected to participate in the VRP on December 22, 1997. However, Plaintiff revoked his election to participate in the VRP on January 5, 1998, based on his "reliance on the statement of his supervisor's supervisor Mr. Ewing that FirstEnergy would not `normally (terminate) a person with 35 years service and a good service record.'" Shortly thereafter, Plaintiff was notified of his inclusion within the RIF. Plaintiff met with a representative from FirstEnergy's Human Resource Department for an exit interview. At that time he was given an "Agreement to Release in Full" (hereinafter the "Release") and two listings of employees' job titles and ages. One list identified the job titles and ages of other employees who were being separated and the other listed those the job titles and ages of the employees who would remain following the RIF. The listings were designed to comply with the requirements for a valid waiver of rights under the ADEA as amended by the OWBPA. Following his exit interview, Plaintiff met with an attorney to discuss the Release. Plaintiff signed the Release on February 16, 1998 and received $61,280.00 in severance pay. Plaintiff's last day of work was January 30, 1998.
Plaintiff subsequently filed a charge with the EEOC alleging age discrimination. The EEOC initiated an action in this Court on behalf of Mr. Mesaros and others seeking an injunction enjoining Defendant from enforcing certain provisions of the Release. This Court issued an Order on July 2, 1998, which provided that:
(1) no part of the Release shall be interpreted to mean that an individual who signs the Release is prohibited from filing a charge of discrimination;
(2) no part of the release shall be interpreted to mean that an employee who signs the Release is prohibited from providing information for or participating as a witness in an investigation undertaken by or a proceeding initiated by the EEOC;
(3) no part of the Release shall be interpreted to mean that an individual who signs the Release is required to repay severance benefits previously received from FirstEnergy if he/she files a charge of discrimination with the EEOC or participates in an EEOC investigation or proceeding;
(4) no part of the Release shall be interpreted to mean that an individual who signs the Release is required to pay FirstEnergy's attorneys fees if he/she files a charge of discrimination with the EEOC or or participates in an EEOC investigation or proceeding; and
(5) no part of the Release shall be interpreted to mean that an individual who signs the Release has waived claims which arise after the execution of the Release.
(ECF # in Case No. 98 mc 19)
The Order also gave individuals who were terminated by FirstEnergy on January 29, 1998, who had not signed the Release as the date of the Order, sixty days to sign and return the Release to FirstEnergy. Finally, the Order required FirstEnergy to send a copy of the Order to all persons who received the Release as a result of the termination of their employment with FirstEnergy. Id. The Order was meant to clarify the spirit and intent of the Release. All provisions of the Release which were not "clarified" by the Order remain in full force and effect. No specific claims of discrimination by Plaintiff or any other terminated employee were raised by the EEOC or addressed by this Court in Case No. 98 mc 19.
Plaintiff's individual discrimination claim remained at the EEOC while the EEOC apparently attempted conciliation discussions which ultimately failed. Following the conciliation attempt, Plaintiff's case lay dormant with the EEOC for more than four years. Eventually, on August 31, 2004, the EEOC decided not to pursue a civil action against FirstEnergy on Plaintiff's behalf and issued Mr. Mesaros a Right to Sue letter. Plaintiff filed this action on December 13, 2004. Defendants now move for summary judgment on the theory that the Release signed by Plaintiff prohibits him from filing a lawsuit against Defendants. Defendants further contend that the Release was a knowing and voluntary waiver of his right to bring an age discrimination claim under the ADEA. Moreover, even if the Release should be found not to be a knowing and voluntary waiver of any age claim, the Release bars all non-age claims raised in Plaintiff's Amended Complaint.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The nonmoving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate. Id.
Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred with the Ninth Circuit that "`it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'" Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). FED. R. CIV. P. 56(e) also has certain, more specific requirements:
[Rule 56(e)] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.Wiley, 20 F.3d at 225-26 (citations omitted). However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect.
If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice.Id. at 226 (citations omitted).
As a general matter, the district judge considering a motion for summary judgment is to examine "[o]nly disputes over facts that might affect the outcome of the suit under governing law." Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh material evidence to determine the truth of the matter. Id. at 249. The judge's sole function is to determine whether there is a genuine factual issue for trial; this does not exist unless "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id.
In sum, proper summary judgment analysis entails "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
DISCUSSION
A. Waiver of Age Discrimination Claim
The Older Workers' Benefit Protection Act became effective on October 16, 1990, as an amendment to the ADEA. The OWBPA provides that an employee may not waive any right or claim under the ADEA unless the waiver is knowing and voluntary. 29 U.S.C. § 626(f)(1). The amendment sets forth several minimum requirements that a release must meet in order to be considered "knowing and voluntary" under the Act. See 29 U.S.C. § 626(f)(1)(A)-(H). Further, the party asserting the validity of a waiver has the burden of proving that a waiver was knowing and voluntary pursuant to paragraph (1) or (2). 29 U.S.C. § 626 (f)(3).
In this instance Plaintiff's objections to the Release at issue center on whether the requirements set forth in 29 U.S.C. § 626 (f)(1)(H) have been met. Section 626 (f)(1)(H) provides:
if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer . . . informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to —
(i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and
(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
The Sixth Circuit has determined that the terms "job title," "job classification," and "organizational unit," which are not defined in the Act, should be interpreted on a case-by-case basis, with an eye to the purposes of the Act. Raczak v. Ameritech Corporation, 103 F.3d 1257, 1262 (6th Cir. 1997). The purpose of the Act, the Court noted, was to ensure that "workers who signed a waiver had a clear idea of what they were giving up, particularly that they had the ability to assess the value of the right to sue for a possibly valid discrimination claim." Id. at 1263. The EEOC has promulgated regulations implementing the OWBPA which also help define these terms. See 29 C.F.R. § 1625.22. "[T]he scope of the terms "class," "unit," "group," "job classification," and "organizational unit" is determined by examining the "decisional unit" at issue." 29 C.F.R. § 1625.22(f)(1)(iii)(C). The regulations define the term "decisional unit" as follows:
A `decisional unit' is that portion of the employer's organizational structure from which the employer chose the persons who would be offered consideration for the signing of a waiver and those who would not be offered consideration for the signing of a waiver. The term `decisional unit' has been developed to reflect the process by which an employer chose certain employees for a program and ruled out others from that program.29 C.F.R. § 1625.22(f)(3)(i)(B). An employer's determination of what constitutes the decisional unit for a group termination is done on a case by case basis. Raczak, 103 F.3d at 1262.
The scope and size of a decisional unit is a function of the type of reduction the employer is seeking to make. The regulations offer several examples. 29 C.F.R. § 1625.22(f)(3)(B)(ii)(B)-(E). If an employer is attempting to reduce its workforce at a particular facility and undertakes a decision-making process by which some of the employees at the facility are selected for a program and others are not, then the facility will be the decisional unit. 29 C.F.R. § 1625.22 (f)(3)(C). Conversely, if the employer seeks to reduce the number of employees at a facility by exclusively considering a particular portion or sub-group of its operations at a facility, then the decisional unit would be that sub-group or portion of the workforce at the facility. Id. The decisional unit may be larger than one facility if an employer is attempting to combine operations from several facilities and considers employees in several facilities for termination. Id. Thus, a valid waiver under the Act would include information — ages and job titles — of everyone in the decisional unit, whatever that decisional unit may be, and the status of each individual with respect to whether the employee was selected for termination or retention.
The Sixth Circuit recognized the difficulties a court will encounter in attempting to evaluate whether the information given by an employer meets the requirements of the Act because it "is in the interest of a worker seeking to void a release to be dissatisfied with any methodology that the company used in attempting to comply with clause (H)(ii)," while a company "may want to fiddle with the definition to mask the possible evidence of age discrimination." Raczak, at 1263. At bottom, the Court determined that "if the employer provide[d] information that purports to comply with the statute, then the inquiry should move to the question of understandability." Id. at 1264. That is, "whether the employer provided the required information in a form, whatever the exact nomenclature, that is understandable to the average worker in voluntarily deciding to give up the right to sue." Id.
In this case it is clear that FirstEnergy provided information that purports to comply with the statute. The waiver, as "clarified" by this Court's earlier Order, meets the requirements of 29 U.S.C. § 626 (f)(1)(A)-(G). The only issue asserted by Plaintiff relates to the disclosure requirements of 29 U.S.C. § 626 (f)(1)(H). Plaintiff asserts that FirstEnergy did not disclose the decisional unit it used for plaintiff's termination. More precisely, Plaintiff complains that FirstEnergy's decisional unit was too large and that FirstEnergy should have employed a decisional unit consisting only of Plaintiff's job category, Multi-Line Crew Supervisor.
In this case, FirstEnergy conducted a RIF to eliminate duplicative salaried, non-union positions resulting from the merger of Ohio Edison and Centerior. The employees considered for the RIF were all salaried employees of Centerior and CEI. The RIF included more than one facility and more than one job title or position. Accordingly, the decisional unit utilized by FirstEnergy in its RIF encompassed all of the employees that were considered for the RIF, that is all Centerior and CEI salaried employees in duplicative and overstaffed positions. FirstEnergy's selection of this decisional unit clearly fits within the parameters set forth in the regulations. The decisional unit utilized by FirstEnergy encompassed the portion of it's organizational structure from which it chose the persons who would and would not be terminated and reflected its decisional process. Under these facts and given the size of this RIF, FirstEnergy's selection of this decisional unit was appropriate.
Plaintiff was given two lists at the time he was notified of his inclusion in the RIF. The first list contained the ages and job titles of the salaried employees from Centerior and CEI whose employment was terminated as part of the RIF. The second list provided in alphabetical order the job title, age and number of salaried employees from Centerior and CEI who were not terminated as part of the RIF.
At his deposition, Plaintiff was able to identify his position on the first list — "Supv-Line Multi-Crew" at age 55 — as well as another employee in the same position. (Mesaros Dep., at pps. 25-26) Plaintiff was also able to identify the employees who were retained in Line positions on the second list. Id. Plaintiff agreed that he was familiar with the titles of jobs in the overhead line section of the company and could tell from the lists what positions were going to be lost in the overhead lines and who, by age, was going to be retained in the overhead lines. Id. at 47-48. When asked if there was any other information that would have been useful to him in understanding the lists, Plaintiff stated that names of the employees on the lists would have been helpful. Id. at 27, 30. Plaintiff admitted, however, that he "really didn't look [the lists] over that closely." Id. At 26. Further, Plaintiff signed the Release on February 16, 1998, about two and a half weeks after he received it from the Defendant. He stated that he had read the Release and understood it somewhat, not fully. Id. at 35. Plaintiff confirmed that he had talked with an attorney before signing the Release and did not feel pressured by anyone at FirstEnergy to sign the Release. Id. at 35-36.
In his brief in opposition to Defendant's Motion for Summary Judgment, Plaintiff complains that the two lists supplied to him before he signed the Release were deficient because the first list understated the number of involuntary reductions in Plaintiff's job title-2 instead of 3 — and the lists failed to identify who FirstEnergy considered as Plaintiff's replacement. Moreover, Plaintiff assumed that the two Multi-Line Supervisor positions were eliminated and would not be filled. Plaintiff based his assumption on the various newsletters that circulated within the company prior to the RIF which indicated that duplicate jobs would be eliminated and not filled. Id. at 29.
With respect to Plaintiff's first objection regarding the number of Multi-Line Crew Supervisors terminated in the RIF, Plaintiff argues that FirstEnergy's position statement to the EEOC indicated that three foremen in their fifties were terminated and offered severance and only two Multi-Line Crew Supervisors were on the list of employees who were terminated. In response, Defendant provided the affidavit of Margaret Breetz, FirstEnergy's Manager of Resourcing Compliance which explains that the third foreman in his fifties who was included in the RIF referred to in the EEOC submission was David Tirabasso, whose last position was Supervisor-Industrial Install. He was not a Multi-Line Crew Supervisor. Mr. Tirabasso's job title and age appeared on the list of employees who were terminated in the RIF. (ECF#21, Ex.B)
Plaintiff also contends that beyond the list of job titles and ages of employees who were retained, Defendant was required to identify who it considered as Plaintiff's replacement. There is no language in Section 626 (f)(1)(H) which would require an employer to identify a terminated employee's replacement or the employees that were considered as replacements. Section 626 (f)(1)(H) specifically requires the employer to provide the job titles and ages of all employees considered for retention and termination. Courts, in applying this section, require employers to give this information to terminated workers in an understandable form. See Raczak, at 1264. The list provided to Plaintiff contained all of the job titles and ages of the employees who were retained, including the job title and age of the employee who eventually filled his position. The list covered the entire decisional unit, as required. Indeed, the employees who eventually filled the Multi-Line supervisor positions were from outside Plaintiff's department. If the decisional unit had been as truncated as Plaintiff requests, neither of the replacements would have been on lists provided to Plaintiff. Under Plaintiff's theory, Defendants would then have been required to give Plaintiff a separate list of all employees considered for Multi-Line Supervisor. As noted above, Plaintiff did not really study the information given to him by First Energy. He was able to understand the job titles on the lists, at least with respect to the line positions. Given Plaintiff's age, seniority and length of experience, he could have assumed that a replacement, if any, would likely be younger and/or from a different department or company. While a list of the specific people or job titles that FirstEnergy actually considered as Plaintiff's replacement would be useful in deciding whether to waive any age discrimination claim, the Act simply does not require the employer to provide that much specific information. In a RIF of this size, it would be very difficult for an employer to provide specific job replacement information to each terminated employee. Rather, the Act requires the employer to provide a list of all of the employees in the decisional unit who were considered for termination, but were retained, as well as all those employees who were terminated. In this case, the information given to Plaintiff fulfilled the requirements of the Act. Moreover, objectively, the information provided by FirstEnergy was sufficiently understandable to an average worker who needed to make a decision regarding whether to give up his right to assert an age discrimination claim. The fact that Plaintiff now asserts that he was confused may be the result of his cursory examination of the information provided to him and/or his failure to ask questions of anyone at his exit interview. In any event, Plaintiff read the Release, looked at the lists provided by Defendant and consulted an attorney before signing the Release. Accordingly, the Court finds that: the Defendants provided Plaintiff with the information required by the OWBPA in and understandable form; Plaintiff knowingly and voluntarily signed the Release; and Plaintiff knowingly and voluntarily waived his right to bring an age discrimination suit against the Defendants. Accordingly, Defendants are entitled to judgment as a matter of law on counts One and Four of Plaintiff's Amended Complaint.
B. Waiver of Counts Two and Three
Defendants assert that Plaintiff, in the Release he signed on February 16, 1998, "expressly waived his right to bring any action against FirstEnergy arising from `federal, state or local statute or under common law' in exchange for $61,280.00." (ECF #13, p. 16). In Count Two, Plaintiff alleges that Defendant violated ERISA by calculating the present value of the VRP benefit using a discount rate greater than that permitted by ERISA. Count Three purports to assert an equitable estoppel claim requesting that Defendants be estopped from accepting Plaintiff's recision of the VRP election and from calculating the lump sum benefit under VRP at an impermissibly high rate. Plaintiff alleges that FirstEnergy fraudulently induced Plaintiff to sign the Release and cannot now use it against him citing the general contract principle that a contract is void and unenforceable if procured by fraud.
Plaintiff alleges that FirstEnergy's misrepresentations materially influenced his decisions at the time he signed the Release. Specifically, Plaintiff alleges that FirstEnergy represented that positions would be eliminated and then were not; Plaintiff believed that overhead line crews were not duplicative and thus his job was not a duplicative administrative position that would be eliminated; Defendant understated the lump sum option offered in the VRP; while considering the VRP option Plaintiff was told by a FirstEnergy official, Mr. Ewing, that FirstEnergy would not normally terminate a 35 year employee with a good service record; FirstEnergy's list of terminated employees contained only two Multi-Line Crew Supervisors when FirstEnergy's subsequent EEOC position paper indicated that three Foremen over 50 were terminated; the list of retained employees included 25 Multi-Line Crew Supervisors, of whom 17 were over 50, and FirstEnergy's EEOC position statement indicated that FirstEnergy retained 23 foremen; and FirstEnergy did not inform Plaintiff that it considered younger employees from other departments and another company to fill his position.
A classic case of fraudulent inducement asserts that a misrepresentation of facts outside the contract or other wrongful conduct induced a party to enter into the contract. Examples include a party to a release misrepresenting the economic value of the released claim, or one party employing coercion or duress to cause the other party to sign an agreement. See ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 692 N.E.2d 574, 578 (1998). In order to prevail on a claim of fraud in the inducement, "a plaintiff must show sufficient evidence of: (1) a false representation of fact or, in the face of a duty to disclose, concealment of a fact, material to the transaction; (2) knowledge of falsity of the representation or utter disregard for its truthfulness; (3) an intent to induce reliance on the representation; (4) justifiable reliance upon the representation under circumstances manifesting a right to rely, and (5) injury proximately caused by the reliance." Metropolitan Life Ins. Co. v. Triskett III, Inc., 97 Ohio App.3d 228, 235, 646 N.E.2d 528 (1994); Gouge v. Bax Global Inc., 252 F.Supp.2d 509, 515 (N.D.Ohio 2003). In Moore, Owen, Thomas Co. v. L. Coleman Coffey, the Sixth Circuit held that "[w]here the allegation is fraud, summary judgment may be granted unless there is sufficient probative evidence produced which, if believed, would clearly and convincingly establish fraud." 992 F.2d 1439, 1446 (6th Cir. 1993). Where the nonmoving party must meet a higher burden of proof than usual, that party must meet the same burden in resisting the summary judgment motion." Street v. J.C. Bradford and Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
Plaintiff's assertions fall far short of fraud. Essentially, Plaintiff originally decided to participate in the VRP program but then decided to take his chances in the RIF after talking to Mr. Ewing. Plaintiff does not assert that Mr. Ewing had any authority to retain or not retain Plaintiff or that Mr. Ewing had any specific knowledge regarding whether Plaintiff would be retained. Mr. Ewing offered his opinion that FirstEnergy would not normally terminated a 35 year employee with a good service record. Mr. Ewing's statement of opinion regarding a future event is not a representation that can form the basis of a fraud claim and Plaintiff could not reasonably rely on that statement of opinion. Fraud cannot be predicated upon a representation or opinion concerning a future event. See Abel v. Auglaize County Highway Dept., 276 F. Supp. 2d 724, 743 (N.D. Ohio 2003).
Further, Plaintiff seems to be asserting that he may have chosen to participate in the VRP program if the lump sum benefit offered to him had been higher. However, since Plaintiff revoked his participation in the VRP program, and the VRP program was not an option at the time he signed the Release at issue, any alleged miscalculations related to the VRP program cannot form the basis of any fraud in the inducement of this Release.
The heart of Plaintiff's fraud in the inducement claim is that Plaintiff concluded, based upon what he heard and read about the RIF that only duplicative, administrative positions would be eliminated, his belief that there were no duplicative line crews, and his conversation with Mr. Ewing, that he would not be terminated in the RIF. Plaintiff apparently did not consider that he could be replaced by someone outside his department or company or that he could be replaced by another supervisor whose job had been eliminated. While the Defendants' communications to employees prior to the RIF referenced eliminating people in duplicative and overstaffed functions, Plaintiff does not claim that Defendants represented that only employees in overstaffed positions would be terminated. In any event, the number of Multi-Line Crew Supervisor positions was reduced in the RIF. There is no evidence to suggest that Defendant made any specific representations to Plaintiff, or any other employee, about whether he would be retained. In addition, there is no evidence to suggest that any job or employee in the decisional unit was exempt from possible termination in the RIF. Defendants sought to keep their best supervisors even when the best supervisors' jobs were eliminated. Accordingly, some supervisors, including Plaintiff, were terminated even though their positions may not have been eliminated. Plaintiff's list of alleged misrepresentations are at best minor inconsistencies and do not clearly and convincingly evidence fraud. Plaintiff has failed to establish a claim of fraud in the inducement based upon the factual record of this case. Accordingly, the Court finds that the Release was knowingly and voluntarily signed by Plaintiff without fraud or duress in exchange for adequate consideration. Since the Release is a valid contract signed by Plaintiff, and under its terms would bar this action in its entirety, Defendants are entitled to judgment as a matter of law.
CONCLUSION
For the reasons set forth herein, Defendants' Motion for Summary Judgment (ECF #13) is GRANTED. This case is terminated.
IT IS SO ORDERED.