Witt v. AMERICAN TRUCKING ASS'N, INC., Civ. A. No. 2:93-0544-18.

Citation860 F. Supp. 295
Decision Date16 August 1994
Docket NumberCiv. A. No. 2:93-0544-18.
CourtU.S. District Court — District of South Carolina
PartiesJoseph H. WITT, Plaintiff, v. AMERICAN TRUCKING ASSOCIATIONS, INC., Defendant.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan David Toporek, Charleston, SC, Marni E. Byrum, McLean, VA, for plaintiff.

Vance J. Bettis, Stephen T. Savitz, Columbia, SC, for defendant.

ORDER

NORTON, District Judge.

This matter is before the court upon Defendant's, American Trucking Associations, Inc.'s (hereinafter "ATA"), Motion for Summary Judgment. A hearing was held on this matter on May 27, 1994. At the time of this hearing, the court requested that the parties submit supplemental memoranda regarding a choice of law issue raised by the court. Accordingly, the parties submitted the requested memoranda to the court. The court finds, as seen below, that ATA's Motion for Summary Judgment should be granted.

I. BACKGROUND

In March of 1955, Witt went to work for ATA as a Safety Clerk. He worked his way up through the department to become a Safety Engineer and Coordinator of Safety Programs. In June of 1980, Witt was transferred to the ATA Sales Department as a Regional Manager.

In 1986, Witt was approached and offered a position in telemarketing. This offer was the result of the company's decision to reduce the number of regional sales managers from five to four, and to implement a telemarketing program. In June of 1986, Tom Fugee, ATA Vice President for Membership and Marketing, met with Witt in the Indianapolis airport. At that meeting, Fugee offered Witt the position of telemarketer, making direct telephone calls to prospective and existing ATA members. According to notes taken by Witt at the June 1986 airport meeting, Witt's new position encompassed the following:

(1) Witt's salary, which had been approximately $3,000.00 per month as a regional manager, would be reduced to $1,500.00 a month, plus 20% of all monies collected. For the first couple of months Witt was employed as a telemarketer, the company agreed to pay him his regular salary in order for his commissions from the sales to accrue and be paid.

(2) Witt would be able to buy a company car for $1.00.

Witt further alleges that the agreement encompassed the following:

(1) Witt would not be required to travel.

(2) Witt would be allowed attendance at sales meetings and the ATA convention.

(3) Witt would be given exclusive responsibility for Class I, II and III suspense and delinquent accounts, nationally, as well as prospective Class 3 carriers. Witt's Memorandum in Opposition to ATA's Summary Judgment Motion, p. 4.

Witt accepted the telemarketing position in July of 1986. At this time, Witt was living in Indiana. During the first week of October 1986, Witt moved to South Carolina. While Witt was a telemarketer from October of 1986 through his resignation in June of 1987, Witt lived in South Carolina.

In August 1986, while still residing in Indiana, Witt learned from Fugee that he would not receive 20% commission on suspense and delinquent accounts. Witt testified that he called Fugee in August of 1986 when he received his first check for telemarketing work done in July. Witt said his call to Fugee was prompted by the fact that "the commission figures did not reflect what I thought I was getting a commission on." Witt Deposition, p. 177 (lines 4-6). Witt testified:

I called Tom, and I'm sure it was Tom I talked to, because I recall Tom saying, `Joe, you don't get paid on suspense and delinquents. You never have, and you don't now.' Well, I understood I never did before, but in the same breath, I also understood that it was our agreement, since I would be handling these accounts exclusively, that it would be included in the 20 percent of all moneys sic reactivated, plus new sold Class 3 accounts.

Id. (lines 9-16). Witt further testified:

Fugee originally told me at the airport, as I understood it, and here it is right here, 20 percent on new Class 3s reinstatements from suspense and delinquents. Can't get any more plainer than that. I wrote it down. And what was different in August, what prompted my phone call was that check that came with little or no commission after some pretty doggone good money generated those three or four weeks in July. You would think anybody would have made a phone call to say, `Hey, what is going on here?' So that was different. When he said that wasn't the agreement, it was contrary to what I had understood at the airport meeting.

Id. at p. 183 (lines 8-19).

After August 1986, the course of events between Witt and ATA and Fugee followed the rough notes Witt made at the airport and Witt's recollections of his agreement with ATA regarding the telemarketing position. First, ATA notes in its memorandum that Witt was "fully set up by mid-August of 1986" to do the telemarketing program. ATA's Memorandum in Support of its Summary Judgment Motion, p. 8. Second, Witt received the $3,000 per month salary for 3 months after he switched to the telemarketing position as Fugee promised at the airport meeting. Third, in January of 1987, Witt purchased the company car for $1.00 as Fugee also offered at the airport meeting.1

Because Witt's performance had not met ATA's expectations, in a March 1987 memorandum, Fugee informed Witt that the company wanted "to see significant improvement in his telemarketing performance within the next 90 days, otherwise you will leave me no choice short of recommending termination."

Witt tendered his resignation in June of 1987. After filing his administrative complaint with the South Carolina Human Affairs Commission, and the Equal Employment Opportunity Commission, Witt sought and received a Notice of Right to Sue. In 1989, Witt filed a lawsuit in federal court alleging both federal and state causes of action (hereinafter "Witt I"). Specifically, in Witt I, Witt alleged (1) unlawful age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (hereinafter "ADEA"); (2) interference with Employee Retirement Income Security Act pension rights under 29 U.S.C. § 1001 et seq. (hereinafter "ERISA"); (3) intentional infliction of emotional distress; (4) breach of the covenant of good faith and fair dealing; and (5) fraud. On April 11, 1991, this court entered summary judgment in favor of ATA in Witt I on Witt's claims under the ADEA and ERISA. The court further dismissed without prejudice the pendent state claims against ATA. Witt has now refiled two of his previous state law claims in which he alleges that during the airport conversation in August 1986, Fugee made fraudulent misrepresentations intended to lure him into accepting a new job and then repudiated the resulting agreement, violating a covenant of good faith and fair dealing.

II. SUMMARY JUDGMENT STANDARD

To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact...." Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, this court must view the record in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). While the court is required to construe the facts and all reasonable inferences arising therefrom in the light most favorable to the non-moving party, wholly speculative and/or conclusory assertions are insufficient to withstand a motion for summary judgment. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). The judge is not to weigh the evidence himself but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Where the substantive law mandates a "clear and convincing" standard of proof, as in this case with the fraud cause of action, the court in disposing of a summary judgment motion must consider whether a reasonable factfinder could conclude that the plaintiff had sufficient evidence to meet that burden. Id. at 251, 106 S.Ct. at 2511-12.

The moving party is entitled to judgment as a matter of law if the non-moving party fails to make a sufficient showing on an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the moving party has carried its burden of establishing the absence of genuine issues of material fact, the non-moving party "may not rest upon mere allegations or denials" of its pleading, Fed.R.Civ.P. 56(e), but must produce sufficient evidence to reasonably support a jury verdict in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

The non-moving party `must do more than simply show that there is some metaphysical doubt as to the material facts.' Cite omitted. `The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient; there must be evidence on which the jury could reasonably find for the non-moving party.' Cite omitted.

Catawba Indian Tribe v. South Carolina, 978 F.2d 1334, 1339 (4th Cir.1992). See also Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) ("Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. A trial, after all, is not an entitlement. It exists to resolve what reasonable minds would recognize as real factual disputes"). However, "where states of mind are decisive as elements of a claim or defense, summary judgment ordinarily will not lie." Overstreet v. Kentucky Central Life Ins. Co., 950 F.2d 931 (4th Cir.1991).

III. ANALYSIS
A. Conflict of Laws Issue

This court must follow the choice of law rules applicable in South Carolina state courts. Thornton v. Cessna Aircraft Co., 703 F.Supp. 1228, 1230 (D.S.C.1988), aff'd, 886 F.2d 85 (4th Cir.1989). South Carolina adheres to common law choice of law rules.

In contract actions, South Carolina courts apply the...

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