Michelson v. Exxon Research and Engineering Co., 86-3274

• Decision Date: 02 January 1987
• Docket Number: No. 86-3274,86-3274
• Citation: 808 F.2d 1005
• Parties: 42 Fair Empl.Prac.Cas. 1031, 42 Empl. Prac. Dec. P 36,820, 55 USLW 2398 William L. MICHELSON, Appellant, v. EXXON RESEARCH AND ENGINEERING COMPANY, a Corporation, A.W. Hanggeli, International Columbia Resources Corporation, a Corporation, and Gustavo Arias.
• Court: U.S. Court of Appeals — Third Circuit

Page 1005

808 F.2d 1005

42 Fair Empl.Prac.Cas. 1031,

42 Empl. Prac. Dec. P 36,820, 55 USLW 2398

William L. MICHELSON, Appellant, v. EXXON RESEARCH AND ENGINEERING COMPANY, a Corporation, A.W.

Hanggeli, International Columbia Resources

Corporation, a Corporation, and Gustavo Arias.

No. 86-3274.

United States Court of Appeals, Third Circuit.

Argued Nov. 18, 1986.

Decided Jan. 2, 1987.

Paul J. McArdle (argued), Pittsburgh, Pa.; (John J. Myers (argued), Ronald W. Folino, Eckert, Seamans, Cherin & Mellott, of counsel), for appellant.

Paul E. Purwin, Exxon Research and Engineering Co., Florham Park, N.J., for appellees.

Before SEITZ, GIBBONS, and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

William L. Michelson, plaintiff below, appeals from the district court's grant of summary judgment in favor of Exxon Research and Engineering Company ("Exxon") on Michelson's claims of defamation, interference with contractual relations, retaliatory discharge, and age discrimination. See Michelson v. Exxon Research and Engineering Co., 629 F.Supp. 418 (W.D.Pa.1986). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 (1982).

I. FACTS AND PROCEDURAL HISTORY

In 1976 Exxon hired appellant as a materials inspector. In October of 1982, Exxon assigned appellant to a project in Erie, Pennsylvania, where appellant was to participate in the inspection of railroad locomotives. Also participating in the inspection was Gustavo Arias, an employee of Carbocol. Carbocol and Exxon were engaged in a joint venture for which the locomotives were being produced.

On December 6, 1982, Arias made a telephone call to James P. Kelly, one of appellant's colleagues at Exxon. Arias reported to Kelly that appellant had been performing his duties inadequately. Arias stated that appellant lacked basic knowledge of locomotives, neglected important aspects of his work, and displayed an arrogant attitude. Following this conversation, Kelly composed a memorandum ("the Kelly memorandum") summarizing Arias' remarks and stating that Arias' remarks had been corroborated by an engineering representative who was present during the locomotives' inspection. Kelly sent the memorandum to appellant's supervisor, Arthur W. Hanggeli, and to other supervisors in the Exxon organization. In turn, Hanggeli sent copies of the Kelly memorandum to Hanggeli's own supervisors and to appellant.

In early 1983, Exxon decided to reduce the number of its materials inspectors as part of a general reduction in Exxon's workforce resulting from a decline in business. Cuts were made on the basis of the inspectors' most recent Performance Appraisals. In April of 1983, appellant received a Performance Appraisal of 3.0 on a scale of 1.0 (outstanding performance) to 4.0 (inadequate performance). In June of 1983, appellant was informed that because of his poor Performance Appraisal, he was vulnerable to termination, and he was urged to take advantage of Exxon's voluntary resignation severance program.

In July of 1983, appellant informed Exxon that he planned to file a workmen's compensation claim against Exxon. In September, Exxon terminated appellant's employment. In 1983, Exxon also terminated six of appellant's twenty-two fellow inspectors.

As a result of these events, appellant filed suit against Kelly in Pennsylvania state court and filed the instant action against Exxon and three other defendants in the United States District Court for the Western District of Pennsylvania. The claims against these three other defendants were dismissed for lack of personal jurisdiction and failure to serve process. In the state action appellant proceeded to trial on two theories, defamation and tortious interference with contractual relations. On the tortious interference claim, the trial court directed a verdict in favor of Kelly based on Kelly's defense of privilege in performance of duty. On the defamation count the trial court entered judgment n.o.v. for Kelly. The grant of judgment n.o.v. was affirmed by the Superior Court which held that as a matter of law the Kelly memorandum was not defamatory. The Supreme Court of Pennsylvania denied appellant's subsequent petition for allocatur.

In federal district court appellant sued Exxon for misrepresentation, defamation, tortious interference with contractual relations, retaliatory discharge, and age discrimination. The district court entered summary judgment for Exxon on all claims. On appeal appellant has apparently dropped the misrepresentation claim.

II. DEFAMATION

The district court determined that Exxon could not be held liable for defamation of appellant. The court first ruled that Exxon could not be vicariously liable for Kelly's publication of the memorandum because appellant had improperly split his claim. The court then held that appellant's claim based on Hanggeli's republication was similarly barred by res judicata. While appellant contends the district court erred in its analysis, we need not decide the propriety of the analysis. Because the state court proceedings are now final, appellant is barred by res judicata from asserting his claim based on Kelly's publication. Brobston v. Darby Borough, 290 Pa. 331, 138 A. 849 (1927); Betcher v. McChesney, 225 Pa. 394, 100 A. 124 (1917); see also Restatement (Second) of Judgments Sec. 51 (1982). In addition, because Pennsylvania courts have rejected the notion of mutuality of estoppel, see In re Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975), appellant is collaterally estopped from pursuing his claim based on Hanggeli's republication.

III. TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

Appellant's complaint contends that Exxon is vicariously liable for Kelly's and Hanggeli's tortious interference with appellant's contractual relations. The district court treated the claims as one and held the combined claim barred by res judicata. Although appellant takes issue with the district court's analysis, we need not consider it. Because the state court proceedings are now concluded, appellant's claim based on Kelly's alleged tortious interference is now barred by the doctrine of res judicata. Appellant's claim based on Hanggeli's alleged interference requires little more analysis. It is settled Pennsylvania law that an employer is responsible for the torts of its employees only when the employees are acting within the scope of their employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1276 (3d Cir.1979) (en banc). It is also settled Pennsylvania law that corporations act only through its officers and agents, Menefee v. Columbia Broadcasting System, Inc., 458 Pa. 46, 329 A.2d 216 (1974), and that a party cannot be liable for tortious interference with a contract to which he is a party, Glazer v. Chandler, 414 Pa. 304, 200 A.2d 416 (1964). If Hanggeli was acting within the scope of his employment in allegedly interfering with appellant's contract, he was acting on behalf of Exxon, and appellant's claim is barred by Glazer. If Hanggeli was acting outside the scope of his employment in allegedly interfering with appellant's contract, appellant's claim is barred by the principle stated in Chuy. Accordingly, appellant has failed to state a claim against Exxon based on Hanggeli's alleged interference.

IV. RETALIATORY DISCHARGE

Appellant next claims that he was discharged in retaliation for his making a workmen's compensation claim, and, therefore, he has a cause of action for common law wrongful discharge. "Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy." Novosel v. Nationwide Ins. Co., 721 F.2d 894, 898 (3d Cir.1983). Some states have recognized that a cause of action exists when a discharge is in retaliation for filing a workmen's compensation claim. See, e.g., Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976). As of yet, however, no Pennsylvania appellate court has recognized a cause of action for wrongful discharge in the context of workmen's compensation. Nonetheless, the district court herein found that if a Pennsylvania court were to consider the issue, it would find that such a cause of action exists. The district court also found, however, that appellant could not present any evidence supporting such a cause of action. Accordingly, the court entered summary judgment for Exxon. We agree with the district court that even if Pennsylvania forbids discharges in retaliation for filing workmen's compensation claims, there is no triable issue of fact in this case.

The evidence of record unmistakably shows that appellant informed Exxon of his intent to file a workmen's compensation claim in July of 1983. Appellant's own deposition testimony shows that in June of 1983, Exxon informed appellant that he was vulnerable to discharge because of his low performance rating and because of Exxon's workforce reduction program; at this time, no Exxon officer could have had knowledge of appellant's future workmen's compensation claim. The evidence further shows that, in accordance with its workforce reduction program, Exxon did in fact discharge nearly 30% of its inspectors in 1983. Those inspectors discharged had performance ratings similar to that of appellant.

Appellant maintains that this formidable evidence is merely a ruse concealing Exxon's retaliatory motives. However, the only evidence that appellant offers to prove that Exxon's evidence is a ruse are some statements of Hanggeli in September of 1983 describing appellant as "an old weed" that needs to be "pulled-out." These statements could merely indicate that Hanggeli believed appellant to be a poor worker and a drain on the organization. Alternatively, these statements could support appellant's claim of age discrimination. However, these statements are not probative on the issue of retaliatory discharge and in no way address the fact that Exxon had stated plans to terminate app...