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MCKINNEY v. ARMCO STEEL CORP.

June 28, 1967

George G. McKINNEY, Plaintiff,
v.
ARMCO STEEL CORPORATION, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 This is the second time defendant has moved for summary judgment. In denying the first motion, we said:

 
"In our judgment the record does not disclose admitted or established facts which conclusively refute the averments of the amended complaint to the effect that the defendant refused and neglected upon request to give recommendations as is the custom in the industry and within the defendant corporation, and because of defendant's neglect and refusal to provide references, the discharged plaintiff has been unable to obtain employment. Such averments seem to involve genuine issues of material facts which can only be resolved after a full hearing.
 
"From amended section 7 of the complaint (deemed to be admitted because undenied, Rule 9(d), Fed.R.Civ.P.), it appears that the defendant breached a custom to give recommendations upon the severance of employment. At trial it may be shown that the custom was certain, continuous, uniform and notorious; that the oral contract of employment was entered into with reference to it and in conformity with it. If it is established that the custom was part of the oral contract, the plaintiff may be entitled to damages for breach of contract. Restatement, Contracts, §§ 245, 246, 247." *fn2"

 Subsequently, pretrial procedure was concluded and affidavits were submitted on behalf of each party, and on this record, including the pleadings and plaintiff's deposition, defendant contends that it is entitled to judgment on the ground that there is no genuine issue of material fact. We agree.

 Plaintiff's employment by defendant or its predecessor in 1945 was terminable at will (Pretrial Stipulation, p. 3, § III, 9; plaintiff's deposition, pp. 4-5). He was a non-union salaried employee. For such type of employment no authority has been cited which holds that a former employee is entitled to damages because his employer discharged him, even though the reason assigned, viz., "unsatisfactory performance", was false. Absent a contract of employment for a definite term or unless restrained by some labor union contract, an employer may discharge an employee at will, anytime, without cause or reason, or for any reason he believes justifies the discharge, even though the employee believes the reason to be false. In such cases no action for damages can be maintained for wrongful discharge. Jones v. Pittsburgh Mercantile Co., 295 Pa. 219, 145 A. 80 (1928); Henry v. Pittsburgh & L.E.R. Co., 139 Pa. 289, 297, 21 A. 157 (1891). Cf. Howe v. St. Louis Union Trust Company, 392 S.W.2d 625, 627 (Mo.1965). We do not understand plaintiff to controvert these principles.

 In order to bring himself within the scope of an actionable claim, plaintiff contends that after his discharge he was entitled by a custom which existed in the industry and within the defendant corporation to a recommendation or reference to prospective employers in explanation of the discharge; that this custom became part of his oral contract of hiring; that defendant breached that contract by refusing, upon request, to give prospective employers a recommendation or reference explaining the discharge and falsely informed them that his work was unsatisfactory. As a result, plaintiff contends, he cannot obtain employment and has sustained considerable financial damage. *fn3"

 At common law no duty is imposed upon an employer to give his discharged employee a letter of recommendation. See: Cleveland, C., C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398, 51 N.E. 811, 62 L.R.A. 922 (1898), and authorities therein cited; cf. Pond v. General Electric Company, 256 F.2d 824 (9th Cir. 1958). No Pennsylvania statute has been cited requiring a "service letter" upon discharge as exists in Missouri. *fn4"

 Thus, it is incumbent upon plaintiff to produce sufficient evidence to establish that a custom existed in 1945 - at the time of his employment by defendant or its predecessor - to provide a discharged employee with a recommendation or reference disclosing the true facts of his work record and explaining the true reason for his discharge; that such custom was incorporated in his contract of hiring; and that defendant breached the contract.

 It appears that plaintiff will rely exclusively on his own testimony to prove that the custom existed at the time of his hiring. The defendant expects to present several witnesses to testify that no such custom has ever existed. To prove a case sufficient to submit to a jury, the plaintiff must present evidence of a certain, continuous, uniform and notorious custom to provide recommendations for discharged employees, which custom existed at the time he was hired in 1945 and which became part of the contract of hiring. Cleveland, C., C. & St. L. Ry. Co. v. Jenkins, supra; Traff v. Fabro, 337 Ill.App. 83, 84 N.E.2d 874 (Ill.1949); Moinester v. Wilson & Co., 36 F. Supp. 33 (S.D.N.Y.1940). It has been stated authoritatively that "it will generally be desirable when a particular usage is relied on, to establish it by the testimony of several witnesses; and if it be a well established usage, as it ought to be, this will not be difficult" Traff v. Fabro, supra, 84 N.E.2d p. 877. In order to sufficiently prove that the alleged custom was uniform and notorious at the time he was employed, it would be requisite that plaintiff submit evidence thereof other than his own testimony. Cf. Albus v. Toomey, 273 Pa. 303, 116 A. 917 (1922); Lancaster Transp. Co. v. New York & N.B. Auto Exp. Co., 187 Pa.Super. 621, 146 A.2d 150 (1958).

 We think the record demonstrates conclusively that the plaintiff has no witnesses to prove the existence of the alleged custom in 1945, and a trial is unnecessary. See: Transcript of January 6, 1967, pp. 14 et seq., and affidavits of plaintiff's witnesses relating to custom. Without a contractual or statutory duty on the part of defendant to detail truthfully plaintiff's virtues or shortcomings as a former employee, his case fails. Cf. Pond v. General Electric Company, supra, 256 F.2d pp. 827-828.

 Plaintiff contends that defendant falsely disclosed to the Department of Labor and Industry (actually the Bureau of Employment Security) that the reason for his discharge was: "Services Terminated Because of Unsatisfactory Performance." But this communication was not made to a prospective employer. Although defendant admittedly sent the foregoing information to the Bureau, defendant was required by law to furnish it upon request as a step in the administrative proceedings to determine plaintiff's claim for unemployment compensation benefits, and such information is confidential. 43 Purdon's ...


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