Ira Blake Phillips v. The Goodyear Tire & Rubber Company
651 F.2d 1051
5th Cir.
1981
Check Treatment

*2 BROWN, Before THORNBERRY and WILLIAMS, Judges. Circuit WILLIAMS, Judge: JERRE S. Circuit case, diversity Appellee In this Ira Blake Phillips Appel- employer, sued his former Goodyear Company lant Tire and Rubber (Goodyear) wrongful discharge, con- tending that Goodyear terminated his em- ployment in Phillips’ having retaliation for given deposition testimony in a jury federal trial. The found that testimony was the sole reason for his dis- $400,000 charge and awarded him in actual damages. judg- The district court entered upon ment based verdict. Con- cluding that neither nor Texas— two states whose substantive laws might govern this a cause case— retaliatory discharge of action for in favor peri- of an hired for an indefinite od, we reverse the of the district court.

Phillips employed by Goodyear was Columbia, 1958 at South Carolina. He Goodyear worked for at various locations in May, United States until when he promoted position of District Antonio, Manager company in San 1, 1971, August Goodyear Texas. On made Houston, Phillips Manager District Tex- Shortly as. before June of summoned to office At- lanta, Georgia, where he was advised of his Manager-Re- promotion Region to Assistant alia, contending, inter that neither Phillips and his fami- In June of tail. recognized Phillips’ Atlanta, began nor Texas law asserted ly moved of action. The district denied working Goodyear’s Atlanta office. cause shows, overruled all of Phillips has con- the motions. The also clearly record admitted, proposed jury sistently Goodyear’s objections had written that he *3 questions special charge and and the and employment Goodyear with denied contract of proffered by Goodyear. The period. he hired for an indefinite instructions that was charged jury that district court the Good- at During Phillips employed time was the Phillips to for actual year would be liable office, Tire Goodyear’s Atlanta the Texas discharge damages resulting from the if the Company brought in Houston located discharge only “real and reason” for the against Goodyear in the fed- antitrust suit [Phillips] something from that “result[ed] July in Houston. In and eral district court do, legally such as to the required was August gave deposition Phillips ability providing testimony in a best of [his] testimony in connection with the antitrust proceeding affecting legal or administrative deposi- Approximately one-half his suit. employer. ...”1 [his] deposition was in The tion taken Houston. response questions submitted to In adjourned in was then and was concluded it, jury that real and the found “the August On Atlanta in of 1974. December by [Phillips’ discharge Goodyear] reason 1, 1975, Phillips’ em- Goodyear terminated testimony gave in the Tire was [Texas Phillips ployment. subsequently moved case,” Phillips and that “would Texas, antitrust] from where he now re- Atlanta [discharged] but for such not have been sides. However, testimony.” it found that the n 18,1976, diversity filed Phillips On June discharge by bad faith or was not motivated against Goodyear in suit federal district Phillips. specific ill will with intent to harm Texas, asserting Goodyear in that $400,- jury the sum of The determined that discharged wrongfully maliciously and him compensate fairly Phillips for 0002 would giving deposition in retaliation dis- injuries caused the proximately the litiga- testimony in the Texas Tire antitrust damages were charge. exemplary No tion that was harmful to inter- upon jury’s finding the that awarded based contentions, response Phillips’ est. In act with malice toward Goodyear did not Goodyear Phillips fired be- denied that terminating employment. in his Phillips testimony cause his was harmful or because Goodyear’s motion judge The district denied himself, Phillips perjure arguing refused notwithstanding the judgment verdict reasons, including Phillips’ that al- other Goodyear for judgment against entered and pro- leged incompetency, misconduct and $400,000 plus interest from the date discharge. voked the judgment. twenty-three days jury spanning A trial challenges the Goodyear appeal, Goodyear for a directed held. moved On against his it on a number verdict after rested ease and evidence, insufficiency of including alleged again grounds, the close of all of the damages jury originally in actual The the dis 2. The found record does not reveal whether “$300,000plus upon Georgia and court costs trict ruling law the amount of lawyers’ court relied Texas in- against After the district that recover Good fees.” could jury year jury and attor- that court costs if found the sole structed the neys’ the cause proper testimony of actual fees elements discharge were was his the antitrust However, damages was therefore that their verdict the and suit. the record indicates that jury improper, jurisdictions was sent back deliberate district court that both believed damages ap- issue. In further on the actual of ac asserted cause minutes, jury proximately five returned tion. court that their amended answer informed the judgment,3 employee when an hired for an support verdict to error is indefinite charge period, the court’s on dam- employment relationship may be ages, impropriety jury’s amended party. terminated at will either Under damages. answer on the actual issue rule, employer may, this “at will” with- contention, however, Goodyear’s primary is liability, employee out for a that, as an hired for an indefinite reason, good reason, a bad or no reason at period, no cause of Phillips has Note, recent, thorough all. See the Protect- employer, regardless his former Against Wrongful At Employees Will underlying the discharge. motives Discharge: Duty Only to Terminate Goodyear argues choice-of-law Faith, (1980). Good 93 Harv.L.Rev. rules dictate that substantive law application the at will rule suit, governs sup- law 66-101, grounded is Ann. in Ga.Code plies Phillips cause of with no action. Al- *4 specifically provides which that indefi “[a]n ternatively, Goodyear contends that even if hiring nite may be terminated at will applies, Texas substantive law Texas would According party.” either to the not recognize Phillips’ asserted cause of ac- Court of motives of the em “[t]he Phillips argues tion. application ployer employee in his discharging at will law, Texas but that both contends Texas legally Georgia are Power immaterial.” Co. Georgia and permit recovery his un- 612, Busbin, 442, v. 242 250 S.E.2d 445 Ga. der the circumstances of this case. (1978). courts Georgia uniformly have purposes analyzing For the issue rule, holding followed the at will that an action, whether Phillips has cause of we action, employee no at will has cause of view Phillips’ jury’s contentions and the soünding whether in characterized tort findings light in the most favorable to him. contract, against employer or in his for an Therefore, deciding we assume without that See, alleged wrongful discharge. g., e. id. the sole reason for termination was 444-45; Runyan v. Economics Laborato gave that he testimony truthful harmful to 53, Inc., ry, 147 248 Ga.App. S.E.2d 44 Goodyear’s interests that he refused to Wilson, (1978); 893, Ga.App. 143 McElroy v. perjure himself. Because we conclude that denied, (1977), 240 cert. 435 S.E.2d 155 U.S. neither Georgia supplies nor Texas law 931, 1506, (1978); 98 L.Ed.2d 528 S.Ct. 55 Phillips with a cause his Lines, Inc., Hill v. Ga.App. Delta Air 143 arising former employer from discharge, his 103, (1977); Ely 237 597 v. S.E.2d Strato we need not decide the choice-of-law issue. flex, Inc., 569, Ga.App. 132 208 S.E.2d 583 Likewise, because our conclusion that Phil- (1974). lips has requires no cause of action reversal toto,

of the we have no occa- Texas, will rule flows from the at sion to resolve the remainder of the issues statute, than common law rather but the by Goodyear. raised content of the same as in the rule is Geor- law, states, gia. majority Like the Under Texas an at will may employer and follow the discharged by rule that be with or question causation, concerning damages jury to the actual could have answered $400,000. solely testimony that was fired' his in the if it that he antitrust case even believed jury 3. The testimony found that “the real and reason solely was fired his demon- because [Phillips’ by Goodyear] was testi- knowledge strated and not his lack of because mony gave he in the Tire [Texas gave antitrust] perjure himself or refused to Goodyear case.” contends it introduced testimony interests. harmful to tending prove evidence at the trial that one Phillips’ discharge of the reasons for was that sitting diversity 4. A federal court must fol- deposition testimony his in the antitrust suit low rules of the the choice-of-law forum state. ignorance important company revealed his marketing policies Co., Mfg. Klaxon Electric Co. v. Stentor 313 procedures. Goodyear 1020, 487, 496, 1021, U.S. 61 S.Ct. 85 L.Ed. wording contends that of the broad because (1941). 1477 special issue submitted to the concern-

1055 important regardless employ public policy of the of the state. without cause and See, “public policy” exception This at will liability. g., e. er’s motive without St. Griffin, adopted, v. rule has in one form or Railway Louis Co. been Southwestern an- other, (1914); increasing but ever minor- 703 East a small 106 Tex. 171 S.W. Note, ity supra, of the 93 Harv. Scott, states. See R. 72 Tex. 10 Line & R. R. v.Co. Phillips argues L.Rev. at 1816-24. (1888); Auto United Services Ass’n S.W. light strong public state and federal Tull, (Tex.Civ.App. v. 571 S.W.2d 551 —San policies5 protecting in favor of witnesses e.); ref’d n. r. Antonio writ Cactus truthfully in upon testify who are Wittler, called Feeders, Inc. v. 509 S.W.2d 934 protecting integri- and in favor writ); (Tex.Civ.App. —Amarillo encouraging ty judicial system by NHA, Jones, (Tex. v. Inc. 500 S.W.2d 940 complete testimony, honest both Geor- 1973, writ Civ.App. Worth ref’d n. r. —Ft. gia “public Texas would Dubois, e.); Magnolia Petroleum Co. recovery in his policy” exception and allow (Tex.Civ.App. S.W.2d —Austin case. ref’d); writ Master Tex.Jur.2d and Serv (1962). ant also Perdue v. J. See C. After carefully surveying the Co., (S.D.N.Y. Penney F.Supp. 1234 area, agree in this we with and Texas cases 1979); Co., Bowen Wohl Shoe reported there is no case (S.D.Tex.1975). F.Supp. 572 jurisdiction which all fours either stands on squarely with this one. In the absence of Phillips contends that neither Geor controlling precedent, predict our task is to *5 gia a case nor has decided in which Georgia whether Courts of assuming employee, an as we are without facts, Texas, with these if confronted case, deciding discharged in this adopt “public policy” exception would a to refusing perjure giving to himself or for in applicable the at will rule this case. See Thus, testimony. Phillips trial as A., Chemical, Koppers Nobs U. S. Inc. Georgia serts that neither nor Texas law Co., (5th 1980); 616 Green v. F.2d 212 recovery forecloses under the assumed cir 212, (5th Corp., 612 F.2d 214 Amerada-Hess that, argues cumstances of this case. He if Cir.), denied, 952, 101 cert. 449 U.S. S.Ct. facts, with confronted these both states 356, (1980). 66 L.Ed.2d 216 exception” adopt “emerging an to protect view, the at will rule to basis designed employ In our there is reasonable predic- discharged Georgia ees who are in contravention of in either or Texas law for a Phillips argues very having application of a or attended such court ... or on 5. limit- policy” exception. testifying having “public version of the He or to ed account of his any testified only therein, by any exception pending that the asserts should extend or matter ... communication, threatening to those cases in ute, a state or stat- influ- which federal letter or ences, influence, creating specifically private while not a or endeavors to ... ... discharged justice. cause of action in ployee, em- favor due of .. . administration prohibits employer’s retaliatory 36.06(a) provides Ann. § Tex.Penal Code any person view, employees conduct. Under this who crime commits a if he: statutory right knowingly [ijntentionally have a gage law or common to en- or threat- harms or protected in certain conduct would not be ens to another act in harm an unlawful against discharge engaging in retaliation for in of retaliation for or on account of the service statutory prohibition servant, witness, that conduct public unless a ex- as a or infor- another against employee’s isted with the interference mant. Phillips right. exercise of the contends that not contend that either of these does prohibited conduct, Goodyear’s two statutes 18 right private his favor statutes creates in a 8, U.S.C. 1503 § and Tex.Penal Code Ann. title employer. his former See Odell 36.06(a). § Co., 123 Ref. Humble Oil & denied, 833, Cir.), 941, 97 345 U.S. 73 S.Ct. imposes penalties cert. 18 U.S.C. 1503 criminal (1953) (refusing anyone L.Ed. 1367 to who: implied right influence, private [cjorruptly 18 U.S.C. action under ... endeavors intim- only idate, witness, 1503). impede any any § support cites statutes or court of his claim that conduct the United States in the of his ... public poli duty, injures discharging any party him was in violation of or or witness in his person cy. property on account of his atiend- 1056 stating adopt “pub-

tion that either state would cause and that decision to alter the lic policy” exception legislature); to the at will rule still at will rule must be left recognized Dixon, minority a small Telephone Southwestern Bell Co. v. states. Georgia The courts of and Texas 596, 601-02 (Tex.Civ.App. S.W.2d —San consistently have held to the at will doc- j., 1979), writ dism’d w. o. Antonio slight- trine. perceive We are unable to (Tex.1980) (at S.W.2d will rule followed est recognition indication of a shift toward though firing allegedly based on em- any exception to the at will rule. In- ployee’s complaints company wrongdo- deed, appellate the intermediate courts of kickbacks, ing, improper vouchering recog- each expressly state have refused to contributions).6 political exceptions nize to the at will rule when strong public poli- We are mindful of the faced challenges with to the rule that are cy protecting in favor of those who fulfill identical, analogous, although not to that truthfully pro- duty testify their in court Phillips. See Goodroe v. urged by Moreover, ceedings. cognizant we are Co., Power Ga.App. 251 S.E.2d 51 possibility present facts these (1978) (refusing recognize exception to at compelling recognition more case for though will rule employee alleged even “public policy” exception than those which was fired “because he was about to uncover and Texas courts con- have criminal company activities” of a employ- However, fronted. we also realize that Bank, ee); West v. First National 145 Ga. at will rule grounded important, is itself App. (1978) (at 245 S.E.2d 46 will rule although outmoded, arguably considerations though employee alleged followed she was public policy. bankruptcy); Watson v. declaring fired for Zep Co., Corp., Manufacturing Green v. Amerada-Hess 582 S.W.2d 178 denied, cert. (5th Cir.), (Tex.Civ.App. F.2d 212 449 U.S. writ ref’d n. r. —Dallas e.) (rejecting argument (1980), 66 L.Ed.2d pub- that Texas S.Ct. lic policy requires discharge recently problem. be based on we faced a similar Contrary assertion, employment. plaintiff K. W. S. Man terminated his sued *6 McMahon, ufacturing wrongful Co. v. 565 S.W.2d 368 for actionable fraud and for termina- (Tex.Civ.App. e.), employment writ ref'd n. r. agreement. tion of the The —Waco Co., theories, and Mitchell v. C. C. Sanitation plaintiff found in favor of the awarding on both (Tex.Civ.App. S.W.2d corporate [14th him the value of of the —Houston 5% e.), support Dist.] his writ ref'd n. r. do not plus punitive damages stock on the fraud theo- argument that the Texas courts have ex ry, punitive damages and actual and on the pressed willingness exception a to embrace an wrongful theory. termination The Court of to will the at rule. Appeals Civil affirmed the award of actual and Mitchell, employee alleged punitive an at will damages wrongful discharge, that for hold- employer signed his former had obtained his ing that the termination was both a breach of liability by threatening release from tort charge to dis- authorizing contract and a tort the award of sign. him if he refused to Mitchell punitive damages. Phillips asserts that K. W. way operation limits the of the at will rule. It proposition discharge S. stands for the that of merely proposition stands for the that “even employee an at will is actionable when the right employer discharge where the of an to an employee’s termination results from the use of employee unquestioned,” is id. at an em- judicial process to assert a claim. We valid ployer’s employee threat to an disagree. reading A close of K. W. S. reveals sign may failure to a release constitute duress exception that the court did not carve out an to voiding or coercion the release. Indeed, the at will rule in that the case. court’s Manufacturing any Nor is K. W. S. aid to opinion nowhere mentions the at will rule. The case, Phillips. plaintiff alleged In that the that simple explanation for this omission is that promised the defendants had him 5% plaintiffs while the defendants attacked the Manufacturing employ- stock of K. W. S. judgment wrongful discharge theory on on the period ment for an indefinite of time in return grounds, they argu- several not raise the did time, furnishing for his labor and materials to ment that the at will rule barred the award. corporation. plaintiff the promise, fulfilled his Since the effect of the at will rule was neither give but the defendants refused to the S., raised nor discussed in K. K. S. does W. W. plaintiff company. of the stock of the 5% supply precedent departure not a from the for a employed attorney When he an and threatened rule. stock, to file suit to recover his the defendants brought by refusing grant Goodyear’s erred to mo- There, employee a plaintiff the tion verdict. We accordingly for a directed suit his former Mississippi diversity judgment court’s fa- reverse the district discharged he was employer claiming that vor render fa- rights pursuing his under in retaliation Goodyear. vor of compensation workmen’s stat- Mississippi's Although Mississippi the courts had ute. RENDERED. AND REVERSED question the wheth- specifically decided not might discharg- BROWN, be liable for employer Judge, an dis- er R. Circuit JOHN pressing in retaliation for ing senting: an compensa- rights under the workmen’s

his dissent, but because the respectfully I law, Mississippi made it clear the cases tion incorrectly the cur- opinion states Court’s at will general state followed that that Rather, I do so be- Georgia. rent law of Noting “conflicting nature ex- rule. advantage we do not take cause concerning isting recognition of precedents” opportunity available certification1 retaliatory discharge, a cause of action for from the get authoritative word firsthand exception we declined to carve out what Supreme not on Court Mississippi, noting that is at will rule “it reveal, but on what precedents decided appellate province a federal not our as hold on this new and Georgia would now we fashion for what are [a state] appealing situation. many say was a wise and certain would expressly opinion proceeds The Court’s 214, quot- policy.” social Id. at progressive assumption “that the sole reason for Co., City Loucks v. Star Glass gave termination view, 1977). In (7th Cir. our testimony harmful disposition controls the reasoning of Green pérjure him- or that he refused to interests “public policy” ex- of this case. While the 1054). (p. Considering self” the testi- ception may progressive well “wise and be case in a Federal mony was in a Federal role as a policy,” recognition social of our alleged retaliatory action Court and diversity precludes sitting federal express violation of the Goodyear was in exception creating “public policy” us from as 1503 well prohibitions 18 U.S.C. any at will rule in the absence 36.06(a) (in which state Code § Texas Penal Georgia or indication that the courts of given)2 I cannot part testimony exception. might recognize such an times, that, enlightened in these believe Corp., Percival v. Motors See also General Georgia would consider Court 1976) (declining 539 F.2d 1126 66-101) prior its (§ Georgia code that the Michigan predict for all time would close the book decisions discharge in retaliatory cause of action for stark, shocking claim. but on this new *7 to will rule and view of state’s adherence parties, indeed I fairness think strong policy arguments for and Georgia requires that fairness to recognition exception). adopt it would whether now determine “— join the holding exception” has and thus “emerging view of our increasing minority of the Georgia or ever no cause of action under either small but States”, 1055). (p. law, district court it follows that the States, United answer); Miree v. (certification utility has of- 1. of this remarkable device answer, Supreme 588 F.2d certification 1354 565 F.2d ten been extolled and the 1978); Co. North America (5th Ins. willingly accepted and answered 453 Cir. Court has Guaranty 209; Meyer, See Southern v. from 431 number of certifications this Court. F.2d Pearce, 1979) (5th generally v. [McClintock In re McClintock Gen- Ins. v. F.2d 146 Cir. Co. 607 answer, 732, Corp.], (5th Acceptance eral Motors F.2d 625 F.2d 546 Cir. certification 558 States, nn.2, (5th 1977); v. Wansor Hant- 1980); 4 F.2d 485 Aretz United Cir. Inc., Co, (5th 1981). scho (5th 1208 n. Cir. Cir. answer, (5th 1978) certification F.2d 1978); Motors Ac- McClintock v. General Cir. opinion. 5 Court’s 2. See note ceptance Corp., 1978) F.2d 317 Although quest at one time our Erie

might Mary Tufts, by ascertaining, have been satisfied John F. TUFTS and A. et al., Petitioners-Appellants, puts report- the Court it “that there is no ed case—which stands on all fours with this “squarely one” and an absence of control- COMMISSIONER OF INTERNAL 1055) ling precedent” (p. longer we no need REVENUE, Respondent-Appellee. depend predictability prediction. or our No. 79-2258. See, Schein, 1974, Lehman Bros. v. 416 U.S. 94 S.Ct. 40 L.Ed.2d 215. Appeals, United States Court Fifth Circuit. We have the answer at hand. We have it Unit A certification,

by simple and an authori- tative answer forthcoming July would be either Supreme answer, con, pro Courts or Rehearing Rehearing En Banc declining accept it certification. 19, 1981. Denied Oct. fresh, The need “arguably for a out-

moded” answer cannot be better said than

in this Court’s own words:

“We are mindful strong public

policy in favor protecting those who duty

fulfill their testify truthfully Moreover,

court proceedings. we are

cognizant of the possibility that these present

facts compelling a more case for

recognition “public policy” excep-

tion than those which the ...

courts have confronted. However we

also realize that the at will rule is itself

grounded important, although argu-

ably outmoded, public considerations of

policy.” (emphasis added).

I would certify important question this Georgia. Court of To this

Court’s failure to use this remarkable de-

vice I dissent.3 *8 Mankoff, Dallas, Tex., peti-

Ronald M. tioners-appellants. Gen., Ferguson, Atty.

M. Carr Asst. Mi- Andrews, Paup, Atty., chael L. Gilbert E. Circuit, 3. Since of all opinion the six States of the Fifth concur in the Court’s as to the Texas procedure, Texas alone has no certification I claim.