Weldy v. Piedmont Airlines, Inc., 126

• Citation: 985 F.2d 57
• Decision Date: 28 January 1993
• Docket Number: No. 126,D,126
• Parties: 8 IER Cases 571 Jason C. WELDY, Plaintiff-Appellant, v. PIEDMONT AIRLINES, INC., Defendant-Appellee. ocket 92-7427.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 57

985 F.2d 57

8 IER Cases 571

Jason C. WELDY, Plaintiff-Appellant, v. PIEDMONT AIRLINES, INC., Defendant-Appellee.

No. 126, Docket 92-7427.

United States Court of Appeals Second Circuit.

Argued Sept. 17, 1992.

Decided Jan. 28, 1993.

William A. Price, Buffalo, NY, for plaintiff-appellant.

W.T. Cranfill, Jr., Charlotte, NC (Blakeney & Alexander; Phillips, Lytle, Hitchcock, Blaine & Huber, Michael R. Moravec, Joseph J. Welter, of counsel), for defendant-appellee.

Before: KEARSE, PRATT, and McLAUGHLIN, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Plaintiff Jason C. Weldy appeals from that part of a judgment of the United States District Court of the Western District of New York, John T. Elvin, Judge, that dismissed his slander claim against defendant Piedmont Airlines. After the plaintiff had presented his case to the jury, the district court granted Piedmont's motion under Fed.R.Civ.P. 50 for judgment as a matter of law, on the ground that Weldy had not met his burden of proving his claim either for slander or for compelled self-defamation.

On appeal Weldy challenges only the dismissal of his slander claim. He argues that he produced sufficient evidence to establish a prima facie case of slander under New York law, and that dismissal of that claim before Piedmont had presented its evidence was improper. Agreeing with Weldy, we reverse and remand for a new trial on the slander cause of action.

BACKGROUND

A. Standard of Review

Fed.R.Civ.P. 50(a)(1) reads:

If during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against that party on any claim, counterclaim, cross-claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue.

The general approach to applying this rule has been concisely summarized in Wright & Miller:

Whether the evidence is sufficient to create an issue of fact for the jury is solely a question of law to be determined by the court. The standard in passing on that question is the same whether it arises in the procedural context of a motion for directed verdict or of a motion for judgment notwithstanding the verdict. It is the same in the trial court and on appeal.

Since grant of one of these motions deprives the party of a determination of the facts by a jury, they should be cautiously and sparingly granted * * *.

In determining whether the evidence is sufficient the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.

9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2524, at 541-45 (1971) (citations omitted).

In our circuit, the district court may grant the motion "only when, viewing

                the evidence most favorably to the party other than the movant, 'there can be but one conclusion as to the verdict that reasonable men could have reached.' "  Diebold v. Moore McCormack Bulk Transp. Lines, Inc., 805 F.2d 55, 57 (2d Cir.1986) (quoting Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167 (2d Cir.1980)).   The nonmovant must be given the benefit of all reasonable inferences, because the trial court "cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury."  Mattivi, 618 F.2d at 167
                

B. Facts the Jury Could Have Found

Applying this standard, we must assume the truth of Weldy's evidence and grant him every reasonable inference. This means that the jury could have found the following facts.

This case arises out of an incident involving Weldy and his co-worker, Tracey George, that resulted in both being discharged from employment at Piedmont Airlines. Weldy, his wife Wendy Weldy, and George were all employed as station agents at Piedmont's terminal facility in the Greater Buffalo International Airport. In July 1987 Wendy Weldy began an extramarital affair with George, but ended it in October 1987, when she reconciled with Weldy.

Perhaps out of frustration at Wendy's decision to end their romance, George slashed the tires of her car on November 8, 1987. When, on the next day, George also pushed and threatened her at the Piedmont Terminal, Wendy immediately called her husband at home to tell him what George had done.

Several hours later, Weldy entered the terminal to confront George for harassing his wife. He appeared very angry and in a loud voice told George that he "wanted the money for the tires and I told him to leave Wendy alone."

Supervisor Patrick Kirwan, who was aware of both the extramarital affair and the tire-slashing incident, recognized there was a potential for violence, so he moved in front of Weldy, who simply stopped. Weldy did not push Kirwan or resist him in any way. At the same time, another employee, Michael Wilkins, approached George and stood in front of him. However, there was no need to restrain either Weldy or George, because there was no physical contact between them during the incident, nor were any verbal or physical threats made. Weldy then apologized to Kirwan and quietly left the terminal.

Nearly two weeks later, on November 20, 1987, Charles Hathaway, the Piedmont station manager, in the presence of another Piedmont employee, Leslie Price, told Weldy that he was being fired because of "aggravated assault" on George. A short while later, Hathaway confirmed to supervisor Robert Burdzy that he had discharged Weldy because of the "aggravated assault". These statements are the focus of Weldy's slander claim.

Hathaway, however, had no direct knowledge of the Weldy/George incident, because he was on vacation the day it occurred. Upon returning to work he discussed the incident with several people, including the only two eyewitnesses who had seen the entire event, Kirwan and Wilkins, both of whom told Hathaway that Weldy neither threatened George nor hit him.

Wilkins, a former policeman, told Hathaway that "they didn't swing at each other or have a fight". After Hathaway persisted that others had advised him that there had been a fight, Wilkins stated, "[A]fter being a policeman all those years, I know what a fight is and what [a fight] isn't".

There was also evidence from which the jury could have inferred that Hathaway had an ulterior improper motive for magnifying the circumstances surrounding the Weldy/George incident. Hathaway held a grudge against another employee, Peter Tripodi, and despite Tripodi's previously pristine work record, Hathaway had begun, in late October 1987, to document in Tripodi's personnel file minor violations of company policy. Since Tripodi, a Piedmont customer service manager, had been in charge of operations the day the Weldy/George A jury could find, however, that Tripodi had permissibly made a discretionary decision not to report the incident. He testified that he "didn't see where anything had happened [during the confrontation] that required documentation in an employee's file," and that he did not report the tire slashing, because Hathaway's own policy had treated the employees' parking lot, where it occurred, as beyond the company's jurisdiction.

                incident occurred and had prepared no report either of the Weldy/George incident, or of the earlier tire slashing of Wendy Weldy's car, Hathaway saw this as an opportunity to get Tripodi discharged.   The more "dangerous" the incident could be made to appear, the more serious would be Tripodi's failure to have reported it
                

Hathaway's plan worked, however, when on November 17, 1987, Tripodi was suspended on the ground that he had "intentionally concealed from the company * * * attempted aggravated assault". Tripodi later chose termination over a transfer.

On November 20, 1987, Piedmont discharged Weldy because of, as Hathaway told him in the presence of another employee, his "aggravated assault" on George.

C. Proceedings Below

Weldy brought his action in the Supreme Court of the State of New York, County of Erie, alleging among other things, slander. Piedmont removed the action to the Western District of New York. The gravamen of Weldy's slander claim is that Hathaway's statement that Weldy had committed an "aggravated assault" was slanderous per se, because it falsely imputed an indictable offense to him.

At the end of Weldy's side of the case, the district judge granted Piedmont's rule 50 motion and dismissed the complaint. His entire explanation for dismissing the case was that "the plaintiff has not met his burden of proof with respect to his claims of slander and compelled self-defamation, and that the defendant is entitled to judgment as a matter of law".

The district judge did not indicate on which element or elements of his claims Weldy had fallen short. Piedmont had argued (1) that the charge of "aggravated assault" was true, but that (2) even if it were false Piedmont was protected by a qualified privilege (3) that it had not abused. Piedmont also had argued that (4) an accusation of "aggravated assault" was not "slander per se ", and that Weldy had presented insufficient evidence of damage, which is a required element of a claim for "slander per quod ", although not for "slander per se ".

Because of the differing and shifting burdens of proof on the interacting issues in a slander action that involves a claim of qualified privilege, some indication from the district judge as to the specific failings in Weldy's case would have greatly facilitated our review on appeal. Indeed, because of the failure of the district judge's decision to explain why he dismissed the complaint, we could simply...