Barber v. Whirlpool Corp.

• Decision Date: 29 August 1994
• Docket Number: No. 93-1716,93-1716
• Citation: 34 F.3d 1268
• Parties: 128 Lab.Cas. P 57,754, 9 IER Cases 1492 Frankie L. BARBER, Plaintiff-Appellee, v. WHIRLPOOL CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1268

34 F.3d 1268

128 Lab.Cas. P 57,754, 9 IER Cases 1492

Frankie L. BARBER, Plaintiff-Appellee, v. WHIRLPOOL CORPORATION, Defendant-Appellant.

No. 93-1716.

United States Court of Appeals Fourth Circuit.

Argued Feb. 9, 1994.

Decided Aug. 29, 1994.

ARGUED: Keith C. Hult, Wildman, Harrold, Allen & Dixon, Chicago, IL, for appellant. Grenville D. Morgan, Jr., McCutchen, Blanton, Rhodes & Johnson, Columbia, SC, for appellee. ON BRIEF: Frederick L. Schwartz, Wildman, Harrold, Allen & Dixon, Chicago, IL, for appellant. Ronald James Tryon, McCutchen, Blanton, Rhodes & Johnson, Columbia, SC, for appellee.

Before ERVIN, Chief Judge, and RUSSELL and HALL, Circuit Judges.

Affirmed in part, reversed in part, vacated in part and remanded for a new trial by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge DONALD RUSSELL and Judge K.K. HALL joined.

OPINION

ERVIN, Chief Judge:

Whirlpool Corporation accused Frankie Barber, its employee, of stealing some painting equipment from the Columbia, South Carolina plant at which he worked. On the basis of two unsigned statements of Whirlpool's undercover investigator, warrants were sworn out for Barber's arrest. Whirlpool eventually terminated Barber's employment. Barber sued Whirlpool in state court, alleging intentional infliction of emotional distress, malicious prosecution, libel and slander, and intentional interference with prospective contractual relations. Whirlpool removed the action to the U.S. District Court for the District of South Carolina, Columbia Division, on the basis of diversity jurisdiction. The court granted summary judgment for Whirlpool as to Barber's claim of intentional interference with prospective contractual relations and his libel and slander claims. Barber does not appeal that decision.

Trial was held on the remaining two counts beginning April 6, 1992. The jury returned a verdict on April 9 in favor of Barber, granting him $75,000 in actual damages and $125,000 in punitive damages. On May 4, 1993, the district court held a hearing on Whirlpool's posttrial motions seeking judgment as a matter of law, a new trial or remittitur. The motions were denied from the bench. At the end of the hearing, the court indicated that a written order would be entered and requested Barber's counsel to suggest language for the order. A notation was made on the docket reflecting the bench ruling and indicating that counsel would prepare a final order to be entered by the court. Thereafter, the clerk of court allegedly told Whirlpool that the filing period for appeals began on May 4, the day of the bench ruling. Whirlpool filed notice of appeal on June 3, 1993. The court entered its written Order on June 22 and Whirlpool did not refile its notice of appeal following entry of the judgment.

Whirlpool appeals the district court's denial of its posttrial motions. Barber challenges this court's jurisdiction, arguing that the notice of appeal was ineffective because it was filed before entry of final judgment by the district court. For the reasons set forth below, Barber's motion to dismiss for lack of jurisdiction is denied and the decision of the district court regarding Whirlpool's posttrial motions is affirmed in part and reversed in part.

I.

Whirlpool Corporation hired Frankie Barber in January 1988 to work in its Columbia, SC manufacturing plant. In September 1989, Whirlpool hired an undercover investigator, Raven Chaney, to look into suspected illegal activity at the plant, and paid the Richland County Sheriff's Department to direct the investigation. Chaney made written reports to Whirlpool and the Sheriff's Department that stated that Barber had stolen two paintbrushes on January 5, 1990 and four paint rollers and one roller handle on January 19, 1990. In May 1990, Whirlpool decided to discontinue the investigation and make arrests based on its discoveries at the plant. Whirlpool gave Officer Wes Bickley of the Richland County Sheriff's Department two unsigned statements from Chaney and directed him to obtain warrants for Barber's arrest. On June 20, 1990 Bickley went to the magistrate and had two warrants issued for Barber's arrest for petty larceny.

Barber was not informed of the outstanding warrants against him until June 28, 1990. On that day, Robert Raines, Whirlpool's Manager of Human Resources, called Barber into his office towards the end of Barber's shift at 5:30 a.m. and informed him that Whirlpool had issued warrants for his arrest and that the police would probably pick him up. Barber became very upset, nauseous, and began crying. He denied any wrongdoing. Barber claimed that on the two occasions in question, Chaney approached him and offered him the material. On the first occasion, Chaney put the brushes on top of a cabinet and told Barber to take them. Barber refused and never touched the brushes. Barber claims that on the second occasion, Chaney told Barber to pick up a box and Chaney then placed the rollers in the box. Barber never touched the material. He immediately decided that it wasn't worth losing his job over, put the box on the floor and never removed anything from the plant.

Chaney claims that Barber asked him for the equipment on both occasions and each time Barber removed the material from a cabinet that Chaney opened for him. Chaney claims that Barber left with the material on both occasions, although Chaney did not actually see the material in Barber's possession when he left the plant either time.

After hearing Barber's response at the meeting on June 28, Raines told Barber, who was visibly upset, to go home and wait for a call from Raines later that day. Barber returned home, phoned the Sheriff's Department and was told to call back later. Barber then found an attorney through the yellow pages and spoke with him at 8:30 a.m. Barber then called the Sheriff's Department a second time at 9:00 a.m. and was informed that there were warrants out for his arrest and that he could either come by to turn himself in at 2 p.m. that afternoon and be free to go home after booking or an officer would come to his home to take him into custody. Barber decided to turn himself in rather than be arrested at his home. He called the Sheriff's Department a third time that morning to ask directions and to tell them he would report to the station at 2 p.m.

At noon, Barber received a call from Raines instructing him to come to the plant. At the plant, Raines told Barber that the warrants would be canceled and that Raines now believed that Barber was not guilty of any wrongdoing. Barber was scheduled to leave on vacation the next day during the plant's annual two week shutdown. Raines told Barber to enjoy his vacation and to return as the same good employee he had always been. Barber worked his shift that night and left on vacation the next day, scheduled to return on Monday, July 16, 1990.

On Friday, July 13, 1990 Raines left a message on Barber's answering machine instructing him to come to his office at 8:30 a.m. on Monday. Barber called Raines to see what was going on and Raines said he had reopened the case. Raines asked Barber if he could come to the plant immediately instead of waiting until Monday. Barber was about to leave for Winston-Salem for the weekend and the plant was on the way, so he told Raines that he would stop by. The plant was still closed as a result of the shutdown, but the security guard let Barber and his wife enter when Barber informed him that Raines was expecting him. Barber and Raines went into a conference room together and Barber's wife waited outside the door. Barber asked why Raines had reopened the case. Raines told Barber that Raines now believed he was guilty. He repeatedly accused Barber of stealing the painting material and tried to get him to admit it. The conversation became very emotional and Barber started crying. After about twenty minutes, his wife could hear that Barber's voice was upset and she knocked on the door to try to stop the interrogation. Raines opened the door, informed her "I'm not done yet, little lady" and closed the door. After repeated questioning, Barber finally said that "maybe" he had had the intent to steal for a moment when Chaney put the rollers in the box in Barber's hands but that he had immediately decided it wasn't worth losing his job over. He put the box down and never took anything. Raines told him to leave. On his way out of the building, Barber remembered the warrants and rushed back to Raines to inquire about them and about his employment status. Raines said the warrants were out of his hands and he could do nothing more about it; he would call Barber later about his employment status.

Upon leaving the plant, Barber's wife drove them to Winston-Salem. Barber stayed in a bedroom for the entire weekend, cried, took nerve medication and contemplated suicide. He was worried that he would be arrested and lose his job, his reputation and his children's respect. He had trouble sleeping for a week. After returning to Columbia, he was terminated by Raines on Monday, July 16, 1990. Later that day, Barber informed his two children that he had been accused of theft and terminated by Whirlpool. He also told them that warrants were outstanding for his arrest and he didn't know whether or not he would go to jail. Barber subsequently filed this suit for intentional infliction of emotional harm and malicious prosecution, among other claims.

II.

A.

Barber argues that this court lacks jurisdiction to hear Whirlpool's appeal because its notice of appeal was filed prior to the issuance of final judgment. Barber maintains that the district court's final judgment was entered on June 22, 1993 when its written Order was entered on the docket. Barber therefore concludes that Whirlpool's June 3 notice of appeal is ineffective. We disagree.

Federal Rule of Appellate Procedure 4(a)(4) was amended effective December 1, 1993, so that it now reads:

If any party makes a...