Haigh v. Matsushita Elec. Corp. of America

• Citation: 676 F. Supp. 1332
• Decision Date: 28 December 1987
• Docket Number: Civ. A. No. 87-0455-R.
• Parties: Richard HAIGH, and Norma Haigh, Plaintiffs, v. MATSUSHITA ELECTRIC CORPORATION OF AMERICA, d/b/a Panasonic Company, a Delaware corporation, Gerald Willner, Myron Berman, Barry Kanow, Bernie Adamyk, Steve Latini, Steve Gold, Ralph Wolfe, Jeff Kellner, and Gary Weber, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

676 F. Supp. 1332

Richard HAIGH, and Norma Haigh, Plaintiffs, v. MATSUSHITA ELECTRIC CORPORATION OF AMERICA, d/b/a Panasonic Company, a Delaware corporation, Gerald Willner, Myron Berman, Barry Kanow, Bernie Adamyk, Steve Latini, Steve Gold, Ralph Wolfe, Jeff Kellner, and Gary Weber, Defendants.

Civ. A. No. 87-0455-R.

United States District Court, E.D. Virginia, Richmond Division.

December 28, 1987.

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Robert L. Freed, John Patrick Griffin, Thomas G. Haskins, Richmond, Va., J.W. Harmon, Jr., for plaintiffs.

Howard W. Dobbins, James V. Meath, Robert D. Perrow, Sarah Hopkins Finley, Williams, Mullen, Christian and Dobbins, P.C., Lynne Jacob, Richmond, Va., for defendants.

MEMORANDUM AND ORDER

SPENCER, District Judge.

This matter comes before the Court on two motions by defendants. The first, a motion to dismiss, will be granted in part and denied in part. The second, a motion to compel the production of certain tape recordings, will be granted.

THE MOTION TO DISMISS

Background

Plaintiff Richard Haigh ("Haigh"), a Virginia citizen, was employed by defendant Matsushita Electric Corporation of America (hereinafter "Panasonic") from October 17, 1974 through January 27, 1987. He is fifty-seven years old, and is Jewish. Plaintiff Norma Haigh, a Virginia citizen, is Haigh's wife.

Defendant Panasonic is a Delaware corporation. The individual defendants (hereinafter referred to by their last names), none of whom are Virginia citizens, are employees of Panasonic.

The Second Amended Complaint, which is currently before the Court, is sixty-eight pages long, and contains a plethora of allegations. In brief, Haigh states that he was a salesman for Panasonic who handled the accounts of Best Products and Circuit City. Haigh claims that during his tenure business with these two outfits skyrocketed. In December 1986, Haigh was told that the Best Products and Circuit City accounts were being taken away from him and given to defendant Weber. Haigh also claims he was told his salary would be cut, along with his earnable bonuses. Additionally, he was told that he would be reassigned from his Richmond, Virginia location to the Panasonic accounts in western Virginia. Haigh claims he argued that the reassignment was unlawful, and requested to be told the legitimate business reason for the action. In response, defendants Willner and Adamyk allegedly proposed that the Richmond accounts of Thalhimers, Miller & Rhoads, Robert's Leasing, and Dominion Pottery be added to Haigh's new territory. Haigh also asserts that these two defendants sought a complete release for all of Panasonic's actions to date.

In due course, by letter dated January 27, 1987, Haigh stated that his reassignment was unacceptable, and claimed that Panasonic had constructively terminated his employment. Since that time, Haigh claims to have vigorously sought employment without success.

Haigh's Second Amended Complaint contains sixteen counts.

Count One — Age Discrimination — Panasonic violated the Age Discrimination in Employment Act ("ADEA") by constructively terminating Haigh, age 56, and replacing him with Weber, age 35.

Count Two — Employee Retirement Income Security Act ("ERISA") — Panasonic's pension plan benefits are based on the highest compensation for any five consecutive years during the final ten years of employment. Haigh's proposed transfer was an attempt to unlawfully limit and reduce the amount of pension benefits which would be available to him.

Count Three — Defamation (Defendants Willner and Wolfe) — These defendants told two Best Products employees that Haigh was taken off the Best Products account because he was not doing his job, and because Best Products had requested the move. The statements were false, and Haigh was injured in his profession or trade as a result.

Count Four — Defamation (Defendant Kanow) — This defendant insinuated to several Panasonic employees that Luskin's (a potential employer) was not willing to consider employing Haigh. This statement was false and Haigh was injured in his profession or trade as a result.

Count Five — 42 U.S.C. § 1985 — Panasonic and some of the individual defendants have unlawfully conspired to deprive Haigh of his civil rights, in violation of 42 U.S.C. § 1985(3). Additionally, certain defendants conspired to coerce, intimidate, and influence three Panasonic employees in an attempt to deter truthful testimony in judicial proceedings, in violation of 42 U.S.C. § 1985(2).

Count Six — Antitrust — The adverse employment actions taken against Haigh were partly the result of his refusal to participate in Panasonic's illegal pricefixing schemes in 1985 and 1986.

Count Seven — Title VII — The adverse employment actions taken against Haigh were the result of discrimination based on religion (Jewish) and race (Jewish).

Count Eight — 42 U.S.C. § 1981 — The adverse employment actions taken against Haigh were the result of discrimination based on race (Jewish).

Count Nine — Breach of Contract — Panasonic breached the parties' verbal contract (to employ Haigh until he retired or for as long as he performed satisfactorily), and their written contract (as set out in anti-discrimination portion of Panasonic's employee handbook).

Count Ten — Interference with Contractual Rights — By slandering Haigh, conspiring to injure his business reputation, unlawfully demoting him, and constructively terminating his employment, the defendants tortiously interfered with Haigh's contractual rights concerning his employment.

Count Eleven — Negligent Representations — Representations contained in Panasonic's employee manual, defendant Willner's written and verbal representations, and defendant Hopkins' verbal representations constituted negligent representations designed to induce Haigh to start and continue working for Panasonic.

Count Twelve — Unjust Dismissal — Panasonic, by violating Title VII, 42 U.S.C. §§ 1981 and 1985, the ADEA and other statutes, and by constructively terminating him for his refusal to participate in a price-fixing scheme, has violated the public policy of Virginia in unjustly dismissing Haigh.

Count Thirteen — The defendants have intentionally inflicted emotional distress on Haigh and Norma Haigh.

Count Fourteen — Virginians With Disabilities Act — The adverse employment actions were taken against Haigh, a heart disease sufferer, partly because of his disability, and in contravention of the terms of the Virginians With Disabilities Act, Va. Code §§ 51.01-41 through 46.

Count Fifteen — Tortious Interference With Potential Employment — Defendants' actions concerning Haigh's potential employers were in contravention to the duties imposed on them under Va. Code § 40.1-27.

Count Sixteen — Attorneys' fees and costs.

Defendants deny liability on any and all counts, and, by motion and accompanying memorandum pursuant to Fed.R.Civ.P. 12(b)(1) and (6), seek dismissal of a number of Counts. Plaintiffs responded by way of memorandum, and defendants replied to that response. A hearing was held on the motion on September 22, 1987, at which time plaintiffs sought a delay in the Court's ruling to enable discovery to proceed so that certain issues could be more fully and accurately addressed. Subsequently, plaintiffs were permitted to file a Second Amended Complaint, after which defendants were allowed to file a supplemental memorandum. That memorandum has now been filed, and the motion is ripe for decision. The issues presented by the motion are set out in the following section of this Memorandum and Order.

ISSUES

Defendants present eleven issues in connection with their motion to dismiss.

Issue I — Does Count Four fail to state a cause of action for defamation against defendant Kanow?

Issue II — Does Count Five fail to state a claim under 42 U.S.C. § 1985(3) or § 1985(2)?

Issue III — Must Count Six be dismissed because (a) it fails to state a claim for an antitrust violation, and (b) Haigh lacks standing to bring this claim?

Issue IV — Must Count Seven be dismissed because this Court lacks subject-matter jurisdiction over the Title VII claim?

Issue V — Does Count Nine fail to state a cause of action for breach of contract?

Issue VI — Does Count Ten fail to state a claim for tortious interference with contractual rights?

Issue VII — Does Count Eleven fail to state a claim for fraudulent representations?

Issue VIII — Does Count Twelve fail to state a claim for unjust dismissal in violation of public policy?

Issue IX — Must Count Thirteen be dismissed because (1) this Court lacks subject-matter jurisdiction over Haigh's claim for emotional distress, and (2) Haigh and Norma Haigh have failed to state a cause of action for emotional distress?

Issue X — Does Count Fifteen fail to state a cause of action for tortious interference with potential employment?

Issue XI — Must Count Sixteen be dismissed because no cause of action exists for the recovery of attorneys' fees and costs?

Discussion

Issue I

In Count Four, Haigh alleges that defendant Kanow defamed him at a Panasonic sales meeting. The allegation is spelled out in Paragraph 122 of the Second Amended Complaint:

On or about April 24, 1987, at Panasonic's national sales meeting in Las Vegas, Nevada, Kanow told a group of Panasonic employees that Haigh had applied for employment with Luskin's, Inc., but that "Luskin's would not give him the time of day." According to witnesses, the implication was that because of Haigh's poor job performance at Panasonic, he was not capable of managing the new Luskin's stores in Richmond. In fact, Haigh was clearly qualified and capable for the job since he had managed similar stores while he was employed by Ward's TV (predecessor of Circuit City), and had established a good reputation in the Richmond electronics market through his association with Best, Circuit City, Dominion Pottery, and other area wholesalers.

Haigh seeks to hold Kanow and...