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

2

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.
7

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
8

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.

9III. TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

10

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
11

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.

12

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.

13

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.

14

The Supreme Court recently spoke to the criteria for granting summary
judgment:

15the defendant in a run-of-the-mill civil case moves for summary judgment or for a
If
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....
16

Anderson v. Liberty Lobby, Inc., --- U.S. ----, ----, 106 S.Ct. 2505, 2512, 91
L.Ed.2d 202 (1986). As stated earlier, none of appellant's evidence on the
retaliatory discharge claim is significantly probative; see First National Bank of
Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20
L.Ed.2d 569 (1968); therefore, we must agree with the district court that, in
light of the undisputed evidence offered by Exxon, no reasonable juror could
find by a preponderance of the evidence that appellant was discharged in
retaliation for his filing a workmen's compensation claim.

V. AGE DISCRIMINATION
17

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.
18

Ultimately, the trial judge found that appellant, in fact, had failed to plead a
cause of action under the ADEA, 629 F.Supp. at 424. The trial judge went on,
however, and stated that appellant could not bring an ADEA claim because he
had failed to file a written charge with the Equal Employment Opportunity
Commission ("EEOC") as required by 29 U.S.C. Sec. 626(d) (1982) as a
prerequisite to filing suit. The judge then entered summary judgment for Exxon
on the ADEA claim.

19

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.

20

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.,
708 F.2d 128, 130 (4th Cir.1983); Woodard v. Western Union Telegraph Co.,
650 F.2d 592, 594 (5th Cir.1981); Reich v. Dow Badische Co., 575 F.2d 363,
368 (2d. Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683
(1978). After reviewing the statute and the applicable case law, we agree with
these other circuits and the district court that Sec. 626(d) requires a writing.

21

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:

22charge shall be in writing and shall name the propsective respondent and shall
A
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:
23a 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.
24

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, 650 F.2d at 594-95. Indeed, requiring personal execution of the
writing by the prospective plaintiff would serve no purpose other than to thwart
otherwise valid complaints of age discrimination.

25

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., 710 F.2d 96, 99 (3d Cir.1983). The EEOC's
records of the conversation with appellant were never presented to the district
court, but the parties did submit the affidavits of two EEOC employees, Eugene
Nelson and Eugene Reid. The Nelson affidavit states that according to the
EEOC records, appellant called the EEOC, was assigned a charge number, and
complained that Exxon had treated him adversely and discharged him because
of his age. Though the Nelson affidavit contains numerous conclusions of law,
it contains no other facts from which we can ascertain the contents of the
EEOC record. The Reid affidavit is far more detailed, however. The Reid
affidavit corroborates the facts contained in the Nelson affidavit. It then reports
that appellant stated that he "was interested in filing" a claim; the EEOC then
informed appellant that it needed more facts in order to begin an investigation
and that appellant should get back in touch with the EEOC for purposes of
providing the facts necessary to initiate a formal charge. The Reid affidavit then
indicates that according to the EEOC records, appellant did not again contact
the EEOC. We think that these uncontradicted statements show that the
writings on file at the EEOC were insufficient to allow the EEOC "to

investigate immediately [instead of] await further communication from the

plaintiff before investigation." Bihler, 710 F.2d at 100. Therefore, these
writings do not constitute a "charge" for purposes of Sec. 626(d). Consequently,
we will affirm the judgment of the district court in all respects.

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.

48

Fed.Reg. 138-39 (1983)