42 Fair Empl.Prac.Cas. 1031,
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.,
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,
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,
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.,
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 appellant before Exxon knew of appellant's workmen's compensation claim.
The Supreme Court recently spoke to the criteria for granting summary judgment:
If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....
Anderson v. Liberty Lobby, Inc., --- U.S. ----, ----,
V. AGE DISCRIMINATION
Appellant's age discrimination claim reaches us in a rather uncomfortable procedural posture. In his amended complaint, appellant alleges age discrimination but fails to mention the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1982) ("ADEA"). Instead, appellant invoked the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, Secs. 951, 952 (Purdon 1964). In his brief opposing Exxon's motion for summary judgment, however, appellant indicated that he was proceeding under the ADEA. At pretrial conference, the trial judge warned that appellant's pleadings did not mention the ADEA; however, appellant failed to properly amend his complaint.
Ultimately, the trial judge found that appellant, in fact, had failed to plead a cause of action under the ADEA,
We have a problem with the notion of granting summary judgment on a claim that was never pleaded. We will dissolve this conceptual vexation by assuming without deciding that appellant adequately, albeit inartfully, pleaded a cause of action under the ADEA.
We now turn to the question whether the district court correctly granted summary judgment for Exxon on the basis of appellant's failure to file a written charge with the EEOC. Title 29 U.S.C. Sec. 626(d) (1982) requires a prospective ADEA plaintiff to file charges with the EEOC before he can bring suit in the district court. A number of other circuits have held that a charge must be in writing in order to satisfy Sec. 626(d). Greene v. Whirlpool Corp.,
Appellant never personally sent a written charge to the EEOC. However, he did telephone the EEOC, and the intake officer to whom he spoke did make a written record of the allegations which appellant orally related. The district court implicitly held that this record did not satisfy Sec. 626(d)'s requirement of a writing. With this we cannot agree, and we hold that the writing required by Sec. 626(d) need not be personally executed by the prospective plaintiff. We find support for this position in the EEOC regulations. Title 29 C.F.R. Sec. 1626.6 (1986) states:
A charge shall be in writing and shall name the propsective respondent and shall generally allege the discriminatory act(s). Charges received in person or by telephone shall be reduced to writing.
Section 1626.8 goes on to say:
... a charge is sufficient when the Commission receives from the person making the charge either a written statement or information reduced to writing by the Commission that conforms to the requirements of Sec. 1626.6.
29 C.F.R. Sec. 1626.8 (1986) (emphasis added); see also 29 C.F.R. Sec. 1626.3 (1986) (defining "charge" as "a statement filed ... by or on behalf of an aggrieved person...."). These regulations undeniable provide that the required writing need not be personally executed by the prospective plaintiff. Further the regulations are fully consistent with the language of the ADEA1 and with the purposes of the writing requirement--those purposes being to provide certainty with respect to compliance with the applicable limitation period and to facilitate the EEOC's task of notifying prospective defendants of the complaint. Woodard,
Of course, the mere existence of a writing does not satisfy Sec. 626(d). The writing must constitute a "charge" in order for Sec. 626(d)'s requirements to be fulfilled. "In order to constitute a charge that satisfies the requirement of section 626(d), notice to the EEOC must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery." Bihler v. Singer Co.,
Notes
The section of the ADEA dealing with the filing of charges provides in part:
No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed--
(1) within 180 days after the alleged unlawful practice occurred....
ADEA Sec. 7(d), 29 U.S.C. Sec. 626(d) (1982). Thus, the statute is silent as to who must execute the charge. Before the enactment of the ADEA amendments of 1978, Pub.L. No. 95-256, 92 Stat. 189 (1978), this section provided.
No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed--
(1) within one hundred and eighty days after the alleged unlawful practice occurred....
ADEA, Pub.L. No. 90-202, Sec. 7(d), 81 Stat. 602, 604 (1967) (emphasis added). In light of the 1978 amendments, the EEOC has determined, quite reasonably, that the aggrieved party need not personally execute the charge:
Prior to 1978, section 7(d) of the ADEA required that the individual give the Secretary not less than 60 days notice of intent to file suit. In 1978 section 7(d) was amended to provide that an aggrieved person could not commence a suit until 60 days after a charge covering the matter complained of had been filed with the Secretary. The change from the active to the passive mode lifts the burden from the individual aggrieved to personally file the charge, and allows any charge made in accordance with Sec. 1626.8 which gives sufficient notice to the Commission to conciliate, to satisfy the 7(d) requirement.
Fed.Reg. 138-39 (1983)