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Vogel v. E.D. Bullard Co.

United States District Court, E.D. Kentucky

June 7, 2013

JAMES D. VOGEL, Plaintiff,

Page 700

For James D. Vogel, Plaintiff, Counter Defendant: Thomas E. Glennon, LEAD ATTORNEY, PRO HAC VICE, Thomas E. Glennon, P.A., Minneapolis, MN; Elizabeth S. Muyskens, Stoll Keenon Ogden, PLLC - Lexington, Lexington, KY.

For E.D. Bullard Company, a foreign corporation, Defendant: Mauritia Gauvin Kamer, LEAD ATTORNEY, Ashley Owens Hopkins, Laura Leigh Mays, Stites & Harbison PLLC - Lexington, Lexington, KY.

For E.D. Bullard Company, a foreign corporation, Counter Claimant: Mauritia Gauvin Kamer, LEAD ATTORNEY, Ashley Owens Hopkins, Stites & Harbison PLLC - Lexington, Lexington, KY.


Page 701


Joseph M. Hood, Senior United States District Judge.

This matter is before the Court upon the Motion for Summary Judgment of Defendant E.D. Bullard Company (" Bullard" ) [DE 71], in which Bullard asks the Court to determine whether, among other things and as a matter of law, it ever promised Plaintiff James D. Vogel (" Vogel" ) a rose garden and, even if it did, whether that was an enforceable promise. Vogel has filed a Response [DE 72] stating his objections to the Motion, and Bullard has filed a Reply [DE 75] in further support of its Motion. Having considered the matter carefully in light of the undisputed facts and the relevant law, the Court concludes that, as a matter of law, the claims stated in Plaintiff's Amended Complaint [DE 60] are without merit and shall be dismissed.

I. Background

Defendant Bullard is a maker of fire and safety equipment, which markets and sells its products on an international level. Plaintiff Vogel was contacted in September 2010 by an executive recruiter, retained by Bullard in an effort to recruit Vogel to leave his employment of eleven years and become an employee of Bullard. The recruiter interviewed Vogel in Minnesota, where he resided and worked, in October 2010. After several follow-up communications with the recruiter, Bullard invited Vogel to interview with personnel in Kentucky in November and December 2010. At that time, Bullard provided him a job description for the position for which Vogel was being recruited - Vice President of Marketing and Sales. The job description set forth the specifics of the position, including " tak[ing] the lead in managing, training and motivating approximately forty marketing and sales professionals and support staff around the world," and stated that Bullard was a " team-oriented environment" where work was " fun," and where there were " great colleagues to work with." An organizational chart was also provided to Vogel which depicted that all of Bullard's marketing, sales, and customer service functions reported to the Vice President of Marketing and Sales and that the position would oversee marketing, sales, and customer service functions on a global level.

During the recruiting process, Bullard touted the lucrative financial opportunity presented to Vogel, including short-term and long-term incentive compensation that was available after employment for the requisite time, as well as the authority and automony that he would have as the global head of Bullard's Marketing and Sales activities; the substantial time, support, and guidance he would receive in order to learn the company's organization, processes, strategies, and staff during Chief Executive Officer Richard Miller's (" Miller" ) two-year transition into retirement; and the supportive and positive atmosphere and culture which existed at Bullard. President and Chief Operating Officer Eric Pasch (" Pasch" ) represented to Vogel that he would be " debt free in a few years" of employment because of the compensation that would come his way if he joined the company. During the recruiting process, Miller and Pasch explained to Vogel that it would take six to twelve months for him " to get to know the business" and that he would use that time to absorb the business, products, and culture, before making appropriate marketing and sales changes."

Page 702

Miller promised Vogel that his " main focus [would] be to offer support and guidance to the new Vice President of Marketing and Sales during" the two year period prior to his retirement.

Vogel interviewed with Miller, Pasch, and Linda Huesing, Bullard's Director of Human Resources during his first round of interviews, in November 2010. Huesing told Vogel that Deborah Kenny, the past prior Vice President of Marketing and Sales, had left because she was not a " good fit" and that she had left based on a " mutual agreement." In response to Vogel's inquiries about the culture, atmosphere, and environment at Bullard, Huesing noted that it was a " roll-up your sleeves" place, that employees at all levels interacted with the senior management, and that it was a non-union environment.

On December 29, 2010, Bullard invited Vogel to Lexington to interview with its owner and the Chairman of the Board, Edward " Jed" Bullard. In that interview, Vogel was informed that he would spend the first six to twelve months of his employment assessing the organization, processes, strategies, and staff issues at Bullard to determine what was needed at the company and who would be reporting to him at the conclusion of that year. Pasch has testified that Bullard represented to Plaintiff that the " global" duties of the Vice President of Marketing and Sales would include international responsibility " over time," that he would reach responsibility for " worldwide" sales and marketing through " steps."

On December 30 and 31, 2010, Pasch and Vogel engaged in telephone conversations, while Vogel was at his Minnesota residence, to discuss the terms of Vogel's prospective Employment with Bullard. Pasch and Vogel exchanged emails which included revised offers of employment to confirm the " principal elements" of the offer to Vogel. Vogel received and accepted his final offer of employment while he was in Minnesota.

In their offer of employment, memorialized in a later dated December 30, 2010, Bullard represented that he would receive a bi-weekly salary of $7,602.31, annualized to $200,000.00. He would participate in the Short Term and Long Term Management Incentive Programs as set forth in a memorandum describing those benefits. [1] Vogel offered to pay for a number of relocation expenses, including " temporary living expenses up to $2,400 per month for up to six months or the end of September if needed." There was also a " [s]igning bonus of $20,000 (taxable as ordinary income, payable 30 days after your start date . . . and subject to full repayment to the Company should you voluntarily terminate your employment within two years of yours tart date." Other elements of the offer included " [f]our weeks of paid vacation plus eleven paid holidays (includes three personal 'holidays' of your choosing)." Bullard also promised him a performance and salary review within a year from his employment date, among other things. Plaintiff concedes that he did not raise the issue of whether his employment

Page 703

was at-will or for a term in his pre-employment negotiations.

In an email sent after Vogel agreed to join Bullard, Miller wrote that he would " join with Eric [Pasch] to support you in every way I can and in any way you need." He further indicated that he and Pasch would " do all we can to help make the transition as smooth as possible." Id. Bullard further encouraged him to accept the offer, writing that it saw " only positive outcomes should you honor us by joining the Company" that, while " [t]here [would] be plenty of hard work . . . this hard work will be conducted in a supportive and positive environment with colleagues who have a passion for what they do and even have a little fun along the way!"

Vogel accepted the offer and came to work at Bullard. Once there, he received Bullard's Employee Handbook, which Vogel acknowledged that he received on January 19, 2011, stating, among other things, that " [v]acation is accrued weekly." Also, about a month after Vogel commenced his employment at Bullard, he was presented with a document entitled " Agreement" and was asked to sign it before receiving the $20,000 signing bonus. He did so. The Agreement effectively modified the parties' agreement concerning the repayment of the $20,000 signing bonus, providing for it in the event of Vogel's voluntary departure from the company or " if Bullard terminate[d] his employment for cause within two years after his hire date," reserving to Bullard the sole judgment of whether Vogel's termination was " for cause." The Agreement further provided that Plaintiff " underst[ood] that by accepting the signing bonus this is fully sufficient consideration for entering into this agreement." Finally, the Agreement provided that Vogel " had the opportunity to review the Agreement with legal counsel" and that he " underst[ood] each provision." Pasch specifically pointed out the change in the language from the original offer letter and, aware of the change in the language, Vogel signed the Agreement anyway.

As it happened, once he arrived at Bullard, Vogel found that there was no one to escort him around the office or introduce Vogel to key members of the organization and discuss the business of Bullard with him. Pasch later informed Vogel that he was upset with Miller because Pasch " did not have time" to do so after Miller " dumped his workload" on Pasch, who was, at that time, the new president of Bullard. Vogel was only able to arrange a small number of meetings with Miller to discuss the business of and his role at Bullard during what ended up being his five months of employment at Bullard. After Vogel's first week of employment with Bullard, Pasch directed Vogel that he should not go to Miller " for anything" without first seeking answers from others, and then only if he first involved Pasch. When Vogel did go to Miller for information, Pasch exhibited displeasure with Vogel for having done so.

Vogel informed Pasch of his desire to have weekly meetings with Pasch to learn more about Bullard's business and to receive his feedback and guidance concerning his work and observations. Within a couple of weeks, Pasch informed Vogel that he did not want to have regularly scheduled meetings with him because he found them to be " too constraining." Vogel had the impression that Pasch was always extremely busy or had more important things to do than to meet and speak with Vogel. For example, Pasch worked on other activities on his computer or read other documents during meetings with Vogel and others. Ultimately, Vogel explains that the vast majority of what he learned about Bullard's business, personnel, processes, customers, markets, distributors

Page 704

and products derived from persons other than ...

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