Hensley v. Armstrong World Industries, Inc., CIV-91-1348-C.

• Decision Date: 08 July 1992
• Docket Number: No. CIV-91-1348-C.,CIV-91-1348-C.
• Citation: 798 F. Supp. 653
• Parties: Douglas D. HENSLEY, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., a Pennsylvania corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

798 F. Supp. 653

Douglas D. HENSLEY, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., a Pennsylvania corporation, Defendant.

No. CIV-91-1348-C.

United States District Court, W.D. Oklahoma.

July 8, 1992.

J. Ronald Petrikin, Crowe & Dunlevy, Tulsa, Okl., Dana J. McClendon, Crowe & Dunlevy, Oklahoma City, Okl., for plaintiff.

Rick W. Bisher, Rober B. Hale, Boettcher & Ryan, Oklahoma City, Okl., for defendant.

MEMORANDUM OPINION AND ORDER

CAUTHRON, District Judge.

I.

Douglas Hensley worked at Armstrong World Industries from July 2, 1990, until January 7, 1991. On December 28, 1990, Hensley became ill and went home during his work shift. Several days earlier, he had recorded on company payroll records the time he thought he would be working on December 28, 1990. Due to his illness, he did not work most of the recorded hours. Although Hensley claims he made attempts to correct the records after he returned to work, he was terminated several days later before a correction was made. Armstrong characterized Hensley's termination as being for administrative theft.

Hensley brought this lawsuit against Armstrong in state court, alleging three causes of action: (1) wrongful termination in contradiction of Oklahoma public policy; (2) slander; and, as far as the Court can determine, (3) breach of contract.^* Armstrong moves for summary judgment. Hensley responds in opposition, and the matter is at issue.

If every fact alleged by Hensley were true, the most he would have is an unfortunate series of circumstances resulting in the loss of his job. Perhaps Armstrong terminated Hensley before considering all of the attendant circumstances, in which case the termination was unfair. But as is shown in this Memorandum, Armstrong's conduct does not violate any Oklahoma public policy. Nor has Armstrong, as a matter of law, slandered Hensley. And contrary to Hensley's assertions, the summary judgment evidence establishes without question that he was merely an at-will employee, no employment contract existed, and no breach of any employment agreement has occurred. Accordingly, Armstrong is entitled to complete summary judgment, and this case is stricken from the trial docket.

II. Standard For Summary Judgment

The facts presented to the court upon a motion for summary judgment must be construed in a light most favorable to the nonmoving party. Board of Educ. v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Finally, the movant must show entitlement to judgment as a matter of law. Awbrey v. Pennzoil Co., 961 F.2d 928 (10th Cir.1992); Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985); Fed.R.Civ.P. 56(c).

Although the Court must view the facts and inferences drawn from the record in a light most favorable to the nonmoving party, "even under this standard there are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chem. Co., 849 F.2d 1269, 1273 (10th Cir.1988) (emphasis added). As stated by the Supreme Court, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1).

The Supreme Court articulated the standard to be used in summary judgment cases, emphasizing the "requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510 (emphasis in original). A dispute is "genuine" "if a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. The Court stated that the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512. "The mere existence of a scintilla of evidence in support of the party's position will be insufficient; there must be evidence on which the jury could reasonably find for the party." Id. at 252, 106 S.Ct. at 2512.

III. Undisputed Facts

Rule 14(B) of the Western District of Oklahoma provides a framework for determining undisputed facts at the summary judgment stage. The Rule provides:

The brief in support of a motion for summary judgment (or partial summary judgment) shall begin with a section that contains a concise statement of material facts as to which movant contends no genuine issue exists. The facts shall be numbered and shall refer with particularity to those portions of the record upon which movant relies. The brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section which contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered, shall refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, shall state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.

W.D.Okla.R. 14(B).

Armstrong's motion for summary judgment asserted six undisputed facts, none of which were specifically controverted by Hensley, which are therefore deemed admitted. Even without applying Rule 14(B)'s default provision, the summary judgment evidence clearly supports each undisputed fact. The pertinent undisputed facts, as numbered by Armstrong, are:

2. Hensley was terminated for failing to correct an inaccurate time sheet which he knew falsely reported his attendance.

3. Hensley admitted that his time sheet was inaccurate.

4. Hensley admits that he failed to correct the inaccuracy, although he contends he attempted to correct the time sheet, but was unable to see his supervisor.

6. Hensley's employment was for an unspecified term.

Defendant's brief in support of motion for summary judgment, (Feb. 14, 1992), pp. 2-3 (hereafter "defendant's brief").

IV. Public Policy

Hensley vigorously contends that his termination was in violation of public policy, but, as Armstrong points out, he fails to identify the public policy. The Court knows of no public policy that prohibits the termination of an employee suspected of theft or wrongdoing. In Burk v. K-Mart Corp., 770 P.2d 24 (Okl.1989), the case relied upon by Hensley, the public policy exception to the at-will employment doctrine was discussed. The court held that "public policy exceptions must be tightly circumscribed." Id. at 29. In Burk, the public policy exception was described as being where an "employee is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act consistent with a clear and compelling public policy." Id. Again, Hensley has not identified any such policy.

On the facts of this case, there is no policy prohibiting Hensley's termination. Unless an exception exists, "an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong." Id. at 26 (citations omitted). There is no duty of good faith and fair dealing in every employment contract. Id. To hold otherwise would be to "`subject each discharge to judicial incursions into the amorphous concept of bad faith.'" Id. at 27 (quoting Hinson v. Cameron, 742 P.2d 549, 554 (Okl.1987)).

Armstrong's motion for summary judgment on Hensley's first cause of action is granted.

V. Slander

According to the summary judgment evidence, Hensley's allegations of slander flow from five different circumstances:

1. The accusation by Armstrong that Hensley committed administrative theft.

2. An alleged statement by an Armstrong supervisor to a Domino's Pizza manager that Hensley was fired because he cheated on his time sheets.

3. Hensley's disclosure of the reasons for being fired whenever he applies for a job elsewhere.

4. Statements regarding the circumstances of the termination during Hensley's unemployment compensation proceedings.

5. Hensley's explanation of the termination to his friends and others.

Armstrong contends that circumstances three and five are self-disclosures and do not constitute publication. Slander requires the publication of a statement that is false and unprivileged. M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 171 (10th Cir.1968). Publication must be to someone other than the slandered person or to the alleged slanderer. Id at 171; McKinzie v. Huckaby, 112 F.Supp. 642, 645 (W.D.Okla.1953). Communication of the alleged slanderous statement from one corporate employee to a fellow employee is not publication, as the corporation is deemed to be communicating with itself. Messina v. Kroblin Transp. Sys., 903 F.2d 1306, 1309 (10th Cir.1990); Wadley, 401 F.2d at 171. These authorities make it clear that under the first circumstance described above, communication of the theft allegation among Armstrong officials is not publication.

As to Armstrong's contention that circumstances three and five (Hensley's job applications and his talking with friends and others) constitute self-publication, Armstrong argues that "self-publication" is not publication under Oklahoma slander law. Hensley's response is silent on this point.

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