On Appeal from the United States District Court for the Western District of Pennsylvania (Erie) D.C. Civil No. 84-27 E.
Before SEITZ, GIBBONS, and HUNTER, Circuit Judges.
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. § 1291 (1982).
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.
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 apparent contends the district court erred in its analysis, we need not decide the propriety of the analysis. Because the state court proceedings are not 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, 255 Pa. 394, 100 A. 124 (1917); see also Restatement (Second) of Judgments § 51 (1982). In addition, because Pennsylvania ...