Burdette v. FMC Corp.

• Citation: 566 F. Supp. 808
• Decision Date: 30 June 1983
• Docket Number: Civ. A. No. 82-2389.
• Parties: Ruth Ann BURDETTE, Plaintiff, v. FMC CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

566 F. Supp. 808

Ruth Ann BURDETTE, Plaintiff, v. FMC CORPORATION, Defendant.

Civ. A. No. 82-2389.

United States District Court, S.D. West Virginia, Charleston Division.

June 30, 1983.

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COPYRIGHT MATERIAL OMITTED

Richard L. Withers, Carter Zerbe, Hickok & Withers, Charleston, W.Va., for plaintiff.

Charles Q. Gage, Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., for defendant.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Currently pending before this Court are three motions by Defendant FMC Corporation (FMC): (1) to strike Plaintiff's class allegations; (2) for summary judgment upon Plaintiff's defamation claim; and (3) for summary judgment upon Plaintiff's Title VII claim. Defendant's motion to strike is based upon Plaintiff's failure to move this Court for certification of her suit as a class action pursuant to Rule 23, Federal Rules of Civil Procedure; a second ground is Plaintiff's inability to identify even one similarly situated female employee.

The summary judgment motion respecting Plaintiff's defamation claim is also based upon two grounds: First, that the one year statute of limitations set forth in W.Va.Code, § 55-2-12(c) expired prior to the filing of this action, and second, that the privilege extended to publication of truthful statements by W.Va.Code, § 57-2-4 provides Defendant an absolute defense.

Plaintiff has submitted no response to either of the aforementioned motions, and the Court has been advised that none will be filed. Defendant's summary judgment motion challenging the Title VII claim, based upon Plaintiff's alleged failure to present a prima facie case of discrimination has, however, been fully briefed, with both sides supporting their positions by reference to exhibits submitted therewith. All motions are thus in a posture for decision by this Court.

Federal question jurisdiction is alleged by Plaintiff in her complaint under 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1343(4); jurisdiction over Plaintiff's pendant state claim is invoked pursuant to 28 U.S.C. § 1332.¹ In this action Plaintiff seeks redress in equity for the alleged deprivation of her right to freedom from unlawful sex discrimination, which, she contends, resulted when:

"Defendant ... placed undue employment pressures upon Plaintiff and ... discharged Plaintiff from employment due to Plaintiff's personal involvement with a male employee which male employee received no disciplinary action or other punishment, demotion, or discharge from employment as a result thereof." (Complaint, p. 4).

As relief, Plaintiff requests a permanent injunction be issued, restraining Defendant from discriminating against her or any other female persons "in this class" with respect to compensation, terms, conditions and privileges of employment or otherwise adversely affect their employee status because of sex. Monetary relief is also sought for the denial of her rights, as well as expenses incurred incident thereto. The pendant state claim, as noted, sets forth a cause of action grounded in defamation, wherein Plaintiff requests damages for "injury and distress" suffered by reason of Defendant's alleged reckless publication of rumors concerning her private life. Defendant has denied all of Plaintiff's allegations other than that Plaintiff is a female and was for a period of time in its employ.

I. Motion to Strike Class Allegations

Plaintiff's class allegations, the subject of Defendant's motion to strike, are set forth in the following language:

"Plaintiff brings to sic this action on her own behalf and on behalf of all persons similarly situated pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure. The class the Plaintiff represents is composed of all female persons who are employed, or might be employed by Defendant, who have been and continue to be or might be adversely affected by the practices complained of herein. There are common questions of law and fact affecting the rights of the members of this class who are and continue to be limited, classified, and discriminated against in ways that deprive and tend to deprive them of equal employment opportunities and otherwise adversely affect their status as employees because of sex. These persons are so numerous that joinder of all members is impracticable. A common relief is sought. The interests of such class are adequately represented by Plaintiff. Defendant has acted or refused to act on grounds generally applicable to the class." (Complaint, pp. 3-4).

Defendant challenges Plaintiff's attempt to maintain this suit as a class action on both substantive and procedural grounds. In support of its argument, it points to Plaintiff's own deposition, wherein she stated that she knew of no other female employee at FMC who had been discharged or otherwise discriminated against due to a relationship with a male co-worker. (Burdette deposition, p. 102, Defendant's Exhibit 1).

By definition, an essential prerequisite to a class action is the existence of a "class;" some elements of commonality must exist to treat a category of persons as a class. Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977); Hill v. Western Electric Co., Inc., 596 F.2d 99 (4th Cir.1979). See Brown v. Eckerd Drugs, Inc., 663 F.2d 1268 (4th Cir.1981) rehearing denied 669 F.2d 913. The fact that Plaintiff is a member of a protected group does not, without more, justify certification of a class unless the Plaintiff's claims are typical of the class. Id.; Crawford v. Western Electric Company, 614 F.2d 1300 (5th Cir. 1980); Palmer v. Thompson, 391 F.2d 324 (5th Cir.1967) affirmed 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971). Employment discrimination class actions can be brought only by one who has suffered the same injury sustained by the class. Movement for Opportunity and Equality v. General Motors Corporation, 622 F.2d 1235 (7th Cir.1980). When the complaint alleges facts "related solely to Plaintiff's personal grievances," denial of certification is proper. Patterson v. General Motors Corporation, 631 F.2d 476 (7th Cir.1980) cited in Brown v. Eckerd Drugs, Inc., supra at n. 6.

Title VII contains no special authorization for class actions brought by private parties: The Rule 23(a) requirements of numerosity, commonality, typicality and adequacy of representation must be met by specific identification of law or fact questions in common between Plaintiff and the putative class members.²General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). By Plaintiff's own admission, these requirements have not been met. Because this Court has determined that Plaintiff has not made the showing necessary under Rule 23(a) to maintain her suit as a class action, Defendant's procedural argument need not be addressed.³

II. Motion for Summary Judgment on the Defamation Claim

Defendant's argument in support of this motion has two prongs: The first relates to statements about Plaintiff allegedly made by its agents prior to Plaintiff's termination from employment; the second addresses statements published after Plaintiff's termination. The pre-termination statements, Defendant contends, are barred by the one-year statute of limitations set forth in W.Va.Code, § 55-2-12 held applicable by Cavendish v. Moffett, 253 S.E.2d 558 (W.Va.1979), while the post-termination statements are protected by the "justification" of truth provision contained in W.Va. Code, § 57-2-4.

With respect to the first prong, the Court is not convinced that a continuing course of conduct such as that alleged here may be divided, as Defendant has done, for consideration of the statute of limitations issue. However, because the Court is persuaded that Plaintiff has admitted the truth of the allegedly defamatory publications, it is of the opinion that summary judgment must be rendered for the Defendant.

Summary judgment is appropriate when all of the pleadings, depositions and other documents in the record reveal no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure. See Bland v. Norfolk and Southern Ry. Co., 406 F.2d 863 (4th Cir.1969). Although Defendant in its answer denied publishing any defamatory statements about the Plaintiff, it argues that, for the purposes of the instant motion, it is entitled to judgment even assuming the statements were made. The Court agrees.

Plaintiff's defamation claim is based upon Defendant's action in "recklessly publishing rumors and allegations concerning her private life" (Complaint, p. 5); significantly she does not contend that the statements were false, in all probability because such a contention would have presented a fatal inconsistency with her main claim. The position Plaintiff assumed with respect to her discrimination charge was that she was having an affair with a male co-worker, and that she received discriminatory treatment as a result of her sex when the situation was dealt with by supervisory agents of FMC. (See Complaint, p. 4). The existence of the relationship was freely conceded by Plaintiff during her deposition. (Burdette deposition at 116-117, 137).

Under West Virginia law, a distinction is drawn between libel and slander with respect to the effect of a defense of truth. In McClaugherty v. Cooper, 39 W.Va. 313, 19 S.E. 415 (1894), still the governing law in West Virginia, the state Supreme Court held that although a defendant must show good intent and justifiable ends when publishing truthful statement about a plaintiff in print⁴ the same showing was not required when an oral publication constituted the basis for a claim. McClaugherty held that, in an action for slander, truth alone is an absolute defense. Id. at 314-15, 19 S.E. 415.

Accordingly, there being no genuine issue of material fact which would preclude summary judgment, the Court finds that Defendant is entitled to judgment...