683 F.2d 285 (8th Cir. 1982), 81-1873, Halsell v. Kimberly-Clark Corp.

Docket Nº:81-1873.
Citation:683 F.2d 285
Party Name:Empl.Prac.Cas. 1185, Henry P. HALSELL, Appellant, v. KIMBERLY-CLARK CORPORATION, Appellee.
Case Date:July 26, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 285

683 F.2d 285 (8th Cir. 1982)

Empl.Prac.Cas. 1185,

Henry P. HALSELL, Appellant,

v.

KIMBERLY-CLARK CORPORATION, Appellee.

No. 81-1873.

United States Court of Appeals, Eighth Circuit

July 26, 1982

Submitted April 13, 1982.

Page 286

[Copyrighted Material Omitted]

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Bill R. Holloway, Lake Village, Ark., for appellant, Henry P. Halsell; Holloway & Bridewell, Lake Village, Ark., of counsel.

James M. McHaney, Owens, McHaney & Calhoun, Little Rock, Ark., for appellee, Kimberly-Clark Corp.

Before BRIGHT, Circuit Judge, HENLEY, Senior Circuit Judge, [*] and JOHN R. GIBSON, Circuit Judge.

BRIGHT, Circuit Judge.

Henry Halsell appeals from an adverse judgment in his suit seeking damages for his allegedly wrongful discharge from employment by Kimberly-Clark Corporation (Kimberly-Clark). Because we agree with the district court's 1 disposition of the case, we affirm the judgment of the district court.

I. Background.

In June 1974, Henry Halsell left his job with Spencer Foods to accept employment as a project manager for Kimtech, a wholly owned subsidiary of Kimberly-Clark. Kimtech had contracted to provide design, engineering, and construction services for the expansion of a pulp and paper mill in Orizaba, Mexico, owned by Kimberly-Clark de Mexico (a Mexican corporation in which Kimberly-Clark held a minority interest). In recruiting a supervisor for its operations in Orizaba, Kimtech placed an advertisement for a project manager 2 in a trade journal of the paper industry.

After responding to the advertisement, Halsell was interviewed by John Tinnell,

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president of Kimtech, and the officials of Kimberly-Clark de Mexico with whom Halsell would work most closely. On June 28, 1974, Tinnell telephoned Halsell to offer him the job as project manager. Halsell requested a written employment contract for a definite period of time. Tinnell responded that he could not offer Halsell such a contract, and that the issue was not negotiable. Halsell accepted Tinnell's offer by telephone the same day. Halsell went to Orizaba, Mexico, as project manager in August 1974, and remained there until his discharge on November 15, 1975.

In October 1977, Halsell instituted this action against Kimberly-Clark, alleging that his discharge constituted a breach of his employment contract. He later amended his complaint to include claims for violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976) (ADEA), and for defamation by one of Kimberly-Clark's employees.

Prior to trial, the district court 3 granted defendant Kimberly-Clark's motion for partial summary judgment on the defamation claim. The parties tried the remainder of the case before a jury. At the close of Halsell's case, however, the court directed a verdict for Kimberly-Clark on the ADEA claim. Thus, the court ultimately submitted only the breach of contract claim to the jury.

In response to special interrogatories, the jury concluded that Kimberly-Clark had breached its employment contract with Halsell, and awarded Halsell $250,000 in damages. The district court, however, subsequently granted Kimberly-Clark judgment notwithstanding the verdict.

Halsell now appeals the judgment of the district court, contending that (1) the district court should not have granted summary judgment on the defamation claim; (2) the district court improperly directed a verdict against him on the ADEA claim because he had established a prima facie case of age discrimination; (3) the court should not have entertained a motion for judgment n.o.v. on the contract claim because Kimberly-Clark failed to renew its motion for a directed verdict on that issue at the close of all the evidence; and (4) the court erred in awarding Kimberly-Clark judgment n.o.v. because the jury's verdict was reasonable and supported by substantial evidence. We consider these arguments in turn.

II. Summary Judgment on Defamation Claim.

Halsell amended his original complaint to include a claim of defamation against Kimberly-Clark and Wayne Cheng, a Kimtech design engineer. The amended complaint alleged that Cheng published a false and defamatory memorandum about Halsell. Cheng had written the memorandum to Al Wendahl, manager of Kimberly-Clark's pulp and paper mill activities, regarding problems with Halsell on the Orizaba project. The memorandum remained in Wendahl's personal files until produced in this litigation.

The district court dismissed the claim against Mr. Cheng individually, for lack of personal jurisdiction. Subsequently, the district court granted Kimberly-Clark partial summary judgment on the defamation issue because no publication of the allegedly defamatory statements had occurred.

In terms of Kimberly-Clark's liability, the alleged publication was from Kimberly-Clark to Kimberly-Clark when the memorandum travelled from one Kimberly-Clark employee to another. All this amounts to is the corporation, through its agents, talking to itself. Until the defamatory

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statement is communicated outside the corporate sphere or internal organization, it has not been published. (Halsell v. Kimberly-Clark Corp., 518 F.Supp. 694, No. L.R. 76-C-208 (June 24, 1981) (order) (citations omitted).)

An action for defamation requires publication of the allegedly defamatory matter to one other than the defamed person. The Wisconsin Supreme Court 4 has held that communications between officers of a corporation or between different branches of the same corporation, in the course of corporate business, do not constitute publications to third persons. See Lehner v. Associated Press, 215 Wis. 254, 254 N.W. 664, 666 (1934); Flynn v. Reinke, 199 Wis. 124, 225 N.W. 742, 744 (Wis.1929). Because the essential element of publication was lacking in this case, the district court correctly granted partial summary judgment to Kimberly-Clark on the issue of defamation.

III. Age Discrimination.

At the close of the plaintiff's case-in-chief, the district court granted defendant Kimberly-Clark's motion for a directed verdict on Halsell's claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976) (ADEA). Halsell contends that the district court should not have directed a verdict because he had established a prima facie case of age discrimination. He seeks a new trial on this issue.

The Supreme Court recently clarified the parties' respective evidentiary burdens in an employment discrimination case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. (Id. at 252-53, 101 S.Ct. at 1093 (citations omitted).)

Although the Court in Burdine addressed a claim of gender discrimination in violation of Title VII, the same standards apply in an ADEA case. See Douglas v. Anderson, 656 F.2d 528 (9th Cir. 1981); Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir. 1981).

To establish a prima facie case of age discrimination, Halsell would have to show that Kimberly-Clark discharged him "under circumstances which gave rise to an inference of unlawful discrimination." Texas Department of Community Affairs v. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093; Douglas v. Anderson, supra, 656 F.2d at 531.

Although the proof necessary to establish a prima facie case will vary according to the circumstances of the case, see Moses v. Falstaff Brewing Corp., 550 F.2d 1113, 1114 (8th Cir. 1977), the four criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), provide one way of establishing a prima facie case of employment discrimination. See Douglas v. Anderson, supra, 656 F.2d at 531; Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980); Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980); Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th Cir. 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

In McDonnell Douglas, the Supreme Court held that a claimant under Title VII could establish a prima facie case of prohibited discrimination by showing that he belonged within the class protected by Title VII, that he applied and was qualified for an available position, that he was not hired

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despite his qualifications, and that the position remained open after his rejection and the employer continued to seek applicants of comparable qualifications. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824.

In Loeb v. Textron, supra, the First Circuit used the elements of McDonnell Douglas to evaluate a claim of unlawful discharge under the ADEA. Because the complaint stemmed from firing rather than hiring, however, the court modified the four factors in order to produce an analogous inference.

Complainant would be required to show that he was "qualified" in the sense that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative. He would also have to show that his employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills. Without proof along these lines, the conceptual underpinnings of McDonnell Douglas would not remain recognizable. * * * A correct statement of the elements of a McDonnell Douglas prima facie case, adapted to present circumstances, therefore would have been that...

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