Petition for Writ of Certiorari — Lamb v. Union Carbide Corp.

Supreme Court, U.8.

FILED

231557 APR 1 19%

Ovrile GF THE CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1993

CARL V. LAMB,

Petitioner,

VS.

UNION CARBIDE CORPORATION,

Respondent.

PETITION For WRIT OF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS For THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CARL V. LAMB, Pro Se

P.O. BOX 8612

South Charleston, WV 25303

(304) 755-3518

Batavia Times Publishing Co.

Harold L. Berkoben

Pittsburgh, Pa. (412) 881-7463

STATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

1. On an issue of slander per se, where defendant’s

employee denied that he said anything, where that fact

was opposed by third party recipient, may subsequent

claim of qualified privilege defeat petitioner’s Seventh

Amendment right to jury trial on issues of malice, excess

of privilege, and credibility?

2. On an issue of libel, where published article

contained material that was libelous towards persons

who were terminated, and where article was posted on

bulletin board on floor of building where petitioner

worked, and petitioner was the only person terminated,

may petitioner’s constitutional right to jury trial be

violated by finding that article did not refer to him?

3. On issue of tortious interference in contract, where

petitioner has made prima facie case, may award of

summary judgment for defendant violate petitioner’s

constitutional right to a trial by jury?

TABLE OF CONTENTS

Page

STATEMENT OF QUESTIONS PRESENTED

PRET cc waVreweeeecccessesccceccceon

PR ee PA CE bcc ceccccccccctsees Vv

STATEMENT OF JURISDICTION AND

EE a 1

STATEMENT OF CONSTITUTIONAL

i ic view eb ees 1

STATEMENT OF THE CASE .................. 2

REASONS FOR GRANTING THE WRIT........ y

I. On The Issue Of Slander, Was Petitioner’s

Constitutional Right To A Jury Trial

TD: JL 0 Caadic oe v0 oss 084s 68000 10

II. On, Issue Of Libel, Was Petitioner’s

Constitutional Right To A Jury Trial

ne eese 14

III. On Issue Of Tortious Interference, Was

Petitioner’s Constitutional Right To A Trial

Be Ge WEUMEES Bi esc dccdeeec dees eoee 17

IV. The Opinion Of The Court Below

Conflicts With Previous Decisions Of This

Court And With The Decisions Of Another

a ee 12,15,27,28,29

SUMMARY-—Petitioner Is Entitled To A Jury

Ok ee see eeeceeees 29

APPENDIX:

Notice of Issuance of Mandate from United States

Court of Appeals for the Fourth Circuit Dated

SE SE De eR Kb cbse etch ive essa nia Al

Order on Petition for Rehearing with

Suggestion for Rehearing In Banc—Denied

CUS © ian: k Rockett rides s cinerea A2

Opinion of United States Appeals Court

for the Fourth Circuit Dated December 8, 1993. A4

Order of United States District Court—

Southern District of West Virginia Dated

SU DE, SE ova obec ecebancuvestensedercés A6

Affidavit of Cecil Absten, Jr., Dated January

Ss FIG ie Fee boc SUC sere ee Reine A8

Affidavit of Carol Sue Flowers, Dated February

SS 6e cutie sande hewnewsecdeduceeiens Al0

Affidavit of Gregory A. Goff, Dated January

RRR RD rg pene ATE ee Pweg ta PncN yt Al2

Affidavit of Gregory A. Goff, Dated February

i inkh 0 oe on 006kes cod oe Al4

Affidavit of Carl V. Lamb, Dated February

i eer mer ee te Al7

Affidavit of Carl V. Lamb, Dated February 6,

iis oid SESS aa Hi aa Alg

Affidavit of William Millar, Dated February

Ps 6 bs 5060 OU ss Cie ees eae She kanes A21

Plaintiff's Exhibit ‘‘A’’—Newspaper Clipping from

Charleston Gazette, August 8, 1991 .......... A23

Vv.

TABLE OF AUTHORITIES

Page

Adickes v. S. H. Kress & Co. 398 U.S. 144

ne tn, er ee ere 27

Anderson v. Liberty Lobby Inc., 477 U.S. 257

SOE aS sewed tds dae he shied enndanieeceren 9,27,29

Aurick v. Rockmont Envelope Co., 155 F.2d 568.... 18

Catrett v. Johns-Manville Sales Corp., 756 F.2d

Be EES 0 he bed hee reba dedkbORw eee Hekiaeuds 18

Celotex Corp. v. Catrett, 477 U.S. 317 at 324 (1986). 9,17

Childress v. Abeles, 84 S.E.2d 176 (1954).......... 22

Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 63

EE ed dane tl ekic yes css s Pb Ies obedceece ns 14

C. W. Development, Inc. v. Structures, Inc., 408

ED Su cbcdaes Ge cckeececess 19,20

Jack D. Smith v. Ford Motor Company, et al., 221

cess i onkudabpniesccs: Ul

Fawcett Publications, Inc. v. Morris Okl, 377

P.2d (1962) 42 Certiorari Denied, 376 U.S. 513

Rehearing Denied, 377 U.S. 925................ 15

Fulton v. Atlantic Coast Line R. Co., 67 S.E.2d

REESE SORIERSE Ns ER LR ne 11

Poller v. Columbia Broadcasting System, Inc., et al,

368 U.S. 464, 82 S.Ct. 486 (1962) ..........:.... 28

Weldy v. Piedmont Airlines, 985 F.2d 57 (2nd

0 as Fa gedo bus bc use dees eka bodes 12

White v. Nicholls, 3 How. 266 11 L.Ed. 591 (1845)... 12

vi.

STATUTES

Me EE PEGs coe ec eee ci ecccccucevedote 1

EP SE RON bos hedcedeccc<eensvesetees 7

RULE

8 SP Cee eT ETT e TCT U TOT CTE TET ee 27

OTHER AUTHORITIES

Constitutional Provisions:

rn ce bbb e Wb bh eee bee eoee 1,29

United States Constitution:

Ee a 1

MISCELLANEOUS

Second Restatement of Torts:

ee a i awe a'a Caer ek Cee 22

Se a 20

IN THE

Supreme Court of the United States

October Term, 1993

No.

CARL V. LAMB,

Petitioner,

vs.

UNION CARBIDE CORPORATION,

Respondent.

PETITION For WRIT OF CERTIORARI TO THE UNITED STATES

CourRT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF JURISDICTION

AND GROUNDS

The Court has jurisdiction under Article II, Section 2,

of the Constitution of the United States and Section

1254 of Title 28 of the United States Code, 28 U.S.C.

$1254.

STATEMENT OF CONSTITUTIONAL

PROVISIONS

AMENDMENT VIi [1791]

In suits at common law, where the value in

controversy shall exceed twenty dollars, the right to

trial by jury shall be preserved, and no fact tried by

jury, shall be otherwise re-examined in any Court of

the United States, than according to the rules of the

common law.

ee

2

STATEMENT OF THE CASE

This petition comes as the result of a slander, libel, and

tortious interference in contract claim, wherein petitioner

alleged that in the process of improperly terminating him

from his employment the defendant also defamed him.

The claim arose from the following events:

Petitioner, Carl V. Lamb, a mechanical engineer and an

employee of Midwest Technical, Inc. (MTI), was assigned

to work beginning January 13, 1986, at the defendant

Union Carbide Corporation site in South Charleston,

West Virginia, under defendant’s employee G. R.

Hattiangadi, a group leader in the Plant Engineering

Department. Four months later, Hattiangadi’'s

supervisor, Joe Dodd, Manager of Plant Engineering,

instructed Hattiangadi to notify all departments that

petitioner would review all HVAC work’ that was

performed anywhere in the facility. After six months

petitioner was assigned to work under A.B. Williamson,

who also reported to Joe Dodd.

Late in 1989, Henry Williams, another MTI employee,

asked petitioner to meet with an operating department

engineer to review a proposed fan installation. Petitioner

advised the two that the fan was unsuitable for the

application. James A. Bowyer, defendant’s employee,

also was present. As petitioner was leaving, Bowyer

announced to petitioner, ‘‘Don’t get too Goddamn cocky.

I might replace you. In fact, I will replace you.”

Thereafter, Bowyer found various ways to keep

petitioner aware of his hostility toward petitioner.

‘HVAC stands for heating, ventilating, and air conditioning. In a

chemical plant, HVAC has a broader meaning than the

aforementioned. It involves pneumatically transporting materials in

powder form, collecting and disposing of hazardous fumes, and using

various methods to clean air (scrubbers, filters, electronic air cleaners,

et cetera).

3

One year later, the defendant announced that it was

forming a Large Capital Projects Group which would be

headed by Bowyer and that Bowyer would recruit staff

for the group. On May 28, 1991, N.J. Mabie, a new

employee of the defendant, was escorted to petitioner's

on-site office. The petitioner was instructed by Mabie

and his escort to show Mabie all of his work.

Petitioner immediately contacted A.B. Williams< : and

inquired as to the purpose of Mabie’s examination of

petitioner's work papers. Williamson knew only that

Mabie had just been hired and that Mabie reported to

Hattiangadi. Williamson asserted that he was unaware of

the purpose of Mabie’s visit and denied any knowledge

as to who had hired Mabie.

Later that day, Mabie volunteered to petitioner his

account of the details of his employment interviews with

defendant’s employees Bowyer and Manfred Monsour.

Approximately one week later, Williamson notified

petitioner that Hattiangadi’s group, which now included

Mabie, would handle all of petitioner’s work. Williamson

further informed the petitioner that he (petitioner) would

be terminated at some unstipulated time in the future.

Petitioner contacted E. Bartrug, who had replaced Joe

Dodd as Manager of Plant Engineering, and made the

queries normal to such a situation. In the five years the

petitioner had worked at the defendant’s site, he had

never had problems with anyone except Bowyer, and he

had not responded to Bowyer’s hostilities. Bartrug

_ intimated that there had been complaints about

petitioner from Hattiangadi, Williamson, and Steve

Brewer, the three group leaders in the Plant Engineering

Department.

4

Petitioner first informed Bartrug that he had always

had an excellent working relationship with Hattiangadi

and then further informed Bartrug that he had virtually

no contact with Steve Brewer. Petitioner then stated

that he was unaware of any complaints about his work

performance or against him personally, and he inquired

as to the nature of the complaints. When Bartrug

refused to elaborate, petitioner stated that he did not

believe that Williamson had ever made any such

complaint. Under pressure, Bartrug admitted that this

was indeed true.

Petitioner then suggested that he might like to work in

the new Capital Projects Group. Bartrug informed him

that this would be impossible because petitioner .and

Bowyer, the head of the group, did not get along.

Bartrug became nervous when petitioner asked him how

he had become aware of this fact. When petitioner

advised Bartrug of Bowyer’s threat to replace the

petitioner, Bartrug became agitated and refused to face

the petitioner. The petitioner charged that he was being

unfairly treated and unjustly discharged from his duties;

Bartrug again refused to address petitioner’s complaints.

When Bartrug claimed that he had interviewed Mabie,

petitioner informed him that he knew otherwise.

Petitioner related all the details concerning Mabie’s

hiring that he had confirmed by speaking with Mabie

himself as well as with other informed parties. Since

Bartrug’s assertions concerning Mabie’s hiring were

contradictory to the facts obtained by petitioner, the

petitioner abruptly ended the conversation and left

Bartrug’s office.

Within five minutes petitioner observed Bowyer

entering Bartrug’s office, which was located proximate to

the petitioner’s office. Approximately one hour later,

Bowyer emerged from Bartrug’s office and entered

nee

5

Mabie’s office, which was directly across the hall from

that of the petitioner. When Bowyer left, Mabie informed

petitioner that he himself would decide when he was

ready to terminate petitioner. Subsequently, Mabie

misinformed petitioner on several occasions as to the

exact date that the petitioner’s employment would be

terminated. This situation, which caused the petitioner

much anxiety, continued for several weeks. During this

interim period, petitioner was unable to explore

subsequent employment opportunities due to the

indeterminate date of his termination.

On August 8, 1991, Respondent had an article

published in The Charleston Gazette, the heading of

which read “UNION CARBIDE LAYOFFS LIKELY,

OFFICIAL SAYS.” (Appendix p. A23, Exhibit “‘A”’).

Paragraph 7 contains the statement: “[Thad] Epps

[defendant’s spokesman] said the company is likely to

cut its use of outside contractors and consultants, and

will eliminate jobs through attrition and retirements... .

[According to Epps,] ‘There may well be some layoffs

down the road.’ ”’

Paragraph 10 contains the following quote attributed

to Epps: “For people who feel they are good performers

and are truly interested in the continued viability of their

jobs, it’s good news .... It’s going to stengthen the

corporation.”

Paragraph 11 also contains a quote from Epps: “For a

person who feels his performance is marginal or who

feels his job is not one that is important to the overall

mission of the corporation, that person might have some

apprehension.”

On August 9, 1991, the aforementioned article was

posted in its entirety on a company bulletin board. On

that very same day, Williamson informed petitioner that

6

he was giving petitioner two weeks notice of termination

of employment. Petitioner was to inform people within

the organization with whom he had work pending that

Mabie would be taking over his duties. Petitioner called

his employer, MTI, and could find no one who was aware

of his imminent termination.

In light of the fact that the article appeared on the

bulletin board the very same day that the petitioner was

notified of his impending termination, and considering

that many employees were discussing this article while

petitioner was engaged in the process of turning over his

work to Mabie, the petitioner felt embarrassed,

humiliated, and disgraced. When petitioner was asked by

several coworkers whether he was the only person

terminated, he reluctantly admitted that he was.

Petitioner observed subtle glances toward the bulletin

board upon which the article was posted after he

informed his coworkers of his termination.

On August 23, 1991, the petitioner's last day of work,

a group of his peers assembled at a local restaurant for a

dinner to be held in his honor, as was the custom with

employees who were leaving. Petitioner attempted to

address the group but was so overcome with humiliation

that he could not do so. Petitioner could not finish the

meal, so he left the restaurant and returned to the

building where he had spent his last five years of

employment. He was so distressed by the situation that

he could not tour the building to face his coworkers and

say goodbye.

In late September, 1991, petitioner was apprised by

persons who were not employees of defendant that Mabie

was disparaging petitioner’s work in the presence of

people with whom petitioner had worked. Soon

thereafter, petitioner happened to see Greg Goff, an

7

employee of an independent contractor and former

coworker, at the home of a mutual friend. When

petitioner inquired if Mabie was in fact criticizing

petitioner's work, Goff confirmed that this was indeed

the case.

In October, 1991, petitioner filed suit in the United

States District Court, Charleston, West Virginia, under

Section 1332 of Title 28 of the United States Code, 28

U.S.C. §1332, seeking compensatory damages for

slander, libel, and tortious interference in contract.

Petitioner demanded a jury trial by endorsement upon

the pleadings.

Petitioner’s complaint alleged, inter alia:

A. That on September 10, 1991, upon visiting the

site of a control room where petitioner had

performed services, defendant’s employee, N.J.

Mabie, in the course of his employment, made the

following statement to a third party: “This must be

another one of Carl Lamb’s screw-ups.”’ This remark

was untrue and was defamatory. It was made

without privilege and implied that petitioner was

incompetent in performing his duties. This was

slander per se.

By amendment on December 13, 1991, petitioner added

the following:

The statement was made for the sole purpose of

defaming the petitioner and was not made for the

purpose of protecting any interest of the defendant,

nor for any other reason than causing harm to the

petitioner’s reputation in his field of expertise.

B. That defendant libeled petitioner via the

published article on August ‘8, 1991, and by his

subsequent termination on the day after the article

appeared in print.

8

C. That defendant’s employee, J.A. Bowyer, in

the course of his employment, threatened to replace

petitioner. Bowyer also stated to a third party that

he was “...going to get Carl Lamb.”’ Petitioner

alleged that Bowyer interfered in petitioner’s

contractual relationship by hiring Mabie and

arranging to transfer petitioner’s work away from

Williamson to Hattiangadi, and that this was the

proximate cause of his loss of employment.

The District Court assigned the case to Magistrate

Court and petitioner again demanded a jury trial. The

District Court granted petitioner's motion. The case

proceeded to a hearing before a magistrate. The

magistrate quashed petitioner’s interrogatories,

intimidated petitioner, and erased the record of his

intimidation of petitioner. The magistrate subsequently

recommended summary judgment for defendant, which

petitioner strenuously objected to. The Distric’ * ari,

without addressing the issues raised by petiti:uaer’s

portion of pretrial order, rescheduled the pretrial

conference and awarded summary judgment for

defendant. No notice or memoranda accompanied the

order for summary judgment to advise petitioner of a

right to petition for rehearing; thus, petitioner lost his

opportunity to do so. Petitioner filed an appeal in a

timely manner to the Appeals Court for the Fourth

Circuit. The Appeals Court affirmed the District Court’s

order for summary judgment. Petitioner then filed in a

timely manner .. petition for rehearing and suggestion for

rehearing in banc to the Appeals Court, citing the

contradictory ruling of another Appeals Court on a

similar case, and again demanded his Seventh

Amendment right to a trial by jury. Rehearing was

denied January 6, 1994, and entered on January 12,

1994. It is from this order that this petition for writ of

certiorari comes before this Honorable Court.

9

REASONS FOR GRANTING THE WRIT

In Celotex Corp. v. Catrett, 477 U.S. 317, the Supreme

Court held that a defendant could be entitled to

summary judgment by showing the absence of an

essential element of his opponent’s case. It need not

disprove petitioner’s case, but it must show that some

essential element was missing.

Petitioner will argue that defendant failed to make the

required showing.

This court stated in Anderson v. Liberty Lobby Inc.,

477 U.S. 257,

‘...{TJhe plaintiff, to survive the defendant’s

motion, need only present evidence from which a

jury might return a verdict in his favor. If he does

so, there is a genuine issue of fact that requires a

trial.”

Petitioner will show that he met this test.

The opinion of the court below conflicts with previous

decisions of this Court and with the decision of another

circuit.

10

I. On The Issue Of Slander, Was Petitioner’s

Constitutional Right To A Jury Trial Violated?

Petitioner will show that there was a genuine issue of

fact and that there was sufficient evidence favoring

petitioner’s claim for a jury to return a verdict in his

favor.

The first contested fact was whether the slanderous

statement attributed to N.J. Mabie was indeed made.

The second issue of fact was whether there was an

occasion of qualified privilege and whether or not it was

lost by exceeding the protection of the occasion or by

malice, or both.

Petitioner alleged that the slanderous statement, as

stated supra in the statement of the case, was indeed

made. Defendant denied that this was the case and

moved for summary judgment. It produced the affidavit

of employee N.J. Mabie denying that he made any

statement or any criticism of petitioner's work to any

person. Petitioner produced the contradicting affidavit of

Greg Goff, an employee of an independent contractor,

who received the statement. This affirms that there is

indeed a controversy of genuine material fact. There is a

jury issue, unless the defendant can show that it is

protected by a qualified privilege and that the privilege

was not abused.

The defendant then took a position inconsistent with

its denial. In effect the defendant changed its position on

a fundamental issue of fact. Without retracting the

denial of its employee N.J. Mabie, defendant’s counsel

took the affidavit of Greg Goff and constructed a

scenario that would, under normal circumstances, be

privileged. The defendant claimed that both Mabie and

11

Goff were agents of the corporation, working together in

their agency. As such, the occasion was privileged, and

as such it wasn’t published. Defendant did this even

though there was an admission on record that an

employee of a contractor, working at defendant's site,

was the employee of the contractor, not of the defendant.

Petitioner submitted a second affidavit from Goff in

which affiant stated:

‘He [Goff] was not working on the system that

Mabie was referring to, that he had no interest in

Mabie’s comments, that he saw no justifiable reason

for the comments, and that he [Goff] was qualified

by reason of sixteen years experience to distinguish

between good work and bad.”’

Defendant’s counsel, after taking an inconsistent

position, attacked Goff’s second affidavit, claiming that

it was submitted for no other reason than to create

controversy. Goff may respond under cross examination,

and, as petitioner has asserted, his testimony will

eliminate any controversy. This is a jury matter.

Petitioner does not concede that the occasion was one

of qualified privilege; but let us assume, arguendo, that

it was.

According to Fulton v. Atlantic Coast Line R. Co., 67

S.E.2d 425,

“Where the person exceeds his privilege and the

communication complained of goes beyond what the

occasion demands that he should publish, and is

unnecessarily defamatory of plaintiff, he will not be

protected.”

Was the privilege exceeded? There was nothing in the

ventilation system that Mabie was in attendance of when

he slandered petitioner that would indicate to Mabie that

he was looking at petitioner’s work. After all, petitioner’s

12

name did not appear on the ducts. Why did he bring

petitioner into the occasion? There was absolutely no

basis upon which he had the right to insinuate

petitioner’s involvement.

As stated in White v. Nicholls, 3 How. 266, 11 L.Ed.

591,

“In every case where a communication would

otherwise be privileged, falsehood and the absence

of probable cause will amount to proof of malice.”

Was there falsehood? Perhaps the best proof of malice

is the lack of good faith indicated by Mabie’s denial. Was

there absence of probable cause? Mabie denied, under

oath, that he had made the slanderous statement or any

criticism whatsoever regarding petitioner's work to any

person.

Defendant pleaded that petitioner had not pleaded

malice. Petitioner can find no precedent where the

defense of qualified privilege has been allowed to defeat

the issue of malice when the making of the statement

has been denied. The law protects the maker of a

defaming statement under certain situations, as it

should, but it is designed for those situations where a

person honestly speaks his mind for legitimate reasons.

The ruling in this case by the Appeals Court directly

contradicts the ruling by another Appeals Court on an

almost identical issue. In the case of Weldy v. Piedmont

Airlines, 985 F.2d 57 (2nd Circuit 1993), the court found

that:

(1) The issue of whether supervisor told co-

employee that employee was being fired for

“aggravated assault’’ was for the jury to decide.

(2) The issue of whether former employer was

entitled to assert qualified privilege was for a jury

to decide.

13

Thus, decisions on issues of malice and credibility are

jury functions.

On the issue of slander per se, petitioner has shown

that he has a prima facie case. A jury could find:

(1) That the statement was indeed made, and

(2) Under proper instructions from the Court,

that such statement was malicious.

Defendant failed to show that there was any essential

element missing from petitioner's case on the issue of

slander; therefore, defendant was not entitled to

summary judgment. Petitioner submits that his

constitutional right to a jury trial on this issue has been

violated.

14

II. On Issue Of Libel, Was Petitioner’s

Constitutional Right To A Jury Trial Violated?

Petitioner will show that from the unrebutted extrinsic

facts and circumstances there was sufficient evidence

that a jury could find petitioner was libeled.

Defendant defended its statements contained in the

Gazette article by pleading that Epps did not know and

had never heard of petitioner, that the article was not

meant to refer to petitioner, and that the article did not

specifically name petitioner. This was the defendant's

only defense. Petitioner proved by affidavit and by copy

of a cancelled check that he had written to Epps, which

Epps had endorsed, that Epps did in fact know

petitioner. As a matter of law, it did not matter.

The Court in Corrigan v. Bobbs-Merrill Co., 228 N.Y.

58, 63, 64 (1920), stated the following:

“The fact that the publisher had no actual

intention to defame a particular man, or indeed to

injure anyone, does not prevent recovery of

compensatory damages by one who connects himself

with the publication of a libel, at least in the

absence of some special reason for a positive belief

that no one existed to whom the description

answered. He cannot show that a libel was not of

and concerning the plaintiff by proving that he

never heard of the plaintiff. Reputations may not be

traduced with impunity, whether under literacy

forms of a work of fiction, or in jest, or by

inadvertence, or by the use of words with a double

meaning.” (Italics added).

The Court stated, ‘The question is not so much who

was aimed at, as who was hit.’ The material fact in

dispute was whether or not reference was made to the

plaintiff.

15

Under the unrebutted extrinsic facts and

circumstances of petitioner being the only person

terminated while the libelous article was posted on

defendant's bulletin board, a jury could find that the

article libeled petitioner.

The issues of group libel and extrinsic facts and

circumstances have been well covered in a landmark case

by the Oklahoma Supreme Court. Citing from 31

Columbia Law review 1322, considering group libel, the

Court said:

“The primary consideration would properly seem to

be whether the plaintiff was in fact defamed,

although not specifically designated. Considerations

adduced in support of the absolute denial of recovery

are inconclusive, as against the desirability of

— a remedy for actual injury.” (Italics

a .

“A more realistic approach would recognize that

even a general derogatory reference to a group does

affect the reputation of every member, and would

adopt as its test the intensity of the suspicion cast

upon the plaintiff.’’

Fawcett Publications, Inc. v. Morris Okl., 377 P.2d 42

Certiorari Denied, 376 U.S. 513 Rehearing Denied, 377

U.S. 925.

By this test, group size is relatively unimportant. The

test is whether the petitioner was libeled.

Petitioner has shown, by the extrinsic facts and

circumstances that have not been rebutted, that a jury

could find that he was libeled.

Defendant pleaded that the article did not refer to

petitioner because he was not replaced. It did not plead

any defense to this article other than its contention that

Epps didn’t know petitioner. It did not deny the posting

16

of the article, nor did it produce any other person who

was terminated. In fact, it admitted that under certain

circumstances, the article could be libelous to petitioner.

Once it is established that the article is libelous, the

issue becomes a factual matter, as to whether by the

extrinsic facts and circumstances, petitioner was the

person libeled. A jury could find, that from the extrinsic

facts and circumstances surrounding petitioner's

termination, that he was libeled. Plain common sense

shows that this would not be an implausible inference.

Defendant failed to show that any essential element was

missing from petitioner’s case on this issue of libel. By

deciding the factual issue, rather than submitting it to a

jury, the District Court denied petitioner’s constitutional

right to a jury trial, and the Appeals Court sanctioned it.

17

III. On Issue Of Tortious Interference, Was

Petitioner’s Constitutional Right To A Trial By

Jury Violated?

There are matters relevant to this issue that need to be

addressed. There were irregularities in the magistrate

court involving discovery and alterations of the record of

the hearing. These were brought to the attention of the

Appeals Court. When a record of a hearing that has been

altered is used by subsequent courts in determining their

decisions, fundamental issues of fairness are correctly

raised.

After the close of the period of time allowed for

discovery, petitioner completed in a timely manner his

portion of the pretrial order and submitted it to

defendant’s counsel. When defendant’s time expired, and

its counsel could not be reached by phone, petitioner

called the court’s law clerk. After waiting five days,

petitioner filed his portion in the district court. He then

filed Notice of Defendant’s Failure to Timely Submit

Pretrial Order.

In petitioner’s portion of the pretrial order, he listed

eighteen witnesses that he expected to call. In Celotex

Corp. v. Catrett, 477 U.S. 317 at 324, Justice Renquist

states, “Obviously rule 56 does not require the non-

moving party to depose her own witnesses.’’ In the

instant case defendant did not conduct any discovery. In

order to defeat summary judgment, petitioner should not

be required to depose his own witnesses, especially in a

case where half are hostile witnesses. Petitioner looked

forward to and was prepared for the first pretrial

conference, and he expected to discuss with the court the

testimony of his witnesses, his theory of the case, and

the contested issues of law and of fact. He did not get

the opportunity because the District Court awarded the

defendant summary judgment.

18

In his dissent in Catrett v. Johns-Manville Sales Corp.,

756 F.2d 181 (1985), Judge Bork states,

‘“.,.Under some circumstances, trial judges may

grant summary judgment sua sponte so long as the

losing party was on notice that he had to come

forward with all his evidence ... Summary

judgment does not require affirmative evidentiary

proof of the absence of a factual dispute. Rather, the

trial judge need only notice this absence and

demand that it be corrected. If it is not corrected,

after notice, it becomes the trial judge’s duty to

grant summary judgment to conserve judicial

resources and avoid a useless trial.’’ (Emphasis

added).

Petitioner does not argue the trial court’s right to award

summary judgment where such is due, but the procedure

should not degenerate into a tool used simply to reduce

the court’s work load. When it has been so used, it must

not be allowed to stand. As stated in Auvrick uv.

Rockmont Envelope Co., 155 F.2d 568,

“An expeditious disposition of cases is a cardinal

virtue of the administration of justice, but it is not

more important than one’s fundamental right to his

full day in court.”

Even without a full and fair opportunity to be heard,

petitioner will show that defendant failed to show that

an essential element of his case was missing on the issue

of tortious interference in contract and expectancies.

Where motive and intent are key to proving liability,

petitioner had third party affidavits to support his case

that the defendant fails to mention in its pleadings.

(Appendix at pp. A8-A16, A21-A22).

In West Virginia, to establish prima facie proof of

tortious interference, a plaintiff must show:

(1) existence of a contractual or business

relationship or expectancy;

19

(2) an intentional act of a party outside that

relationship or expectancy;

(3) proof that the interference caused the harm

sustained; and

(4) damages.

C. W. Development, Inc. v. Structures, Inc., 408 S.E.2d

41 (W.Va. 1991).

Petitioner will address each of these requirements in

order:

(1) It is not contested that petitioner had an at

will contract with MTI, terminable at the will of

either, not at the will of a non party. As to his

expectancy, petitioner had enjoyed the benefits of

the contract for more than five years. A jury could

find that it was reasonable for him to expect that it

would continue.

(2) As a matter of law, defendant was an outsider

to that contract. Defendant was not named in the

contract. The fact that defendant had a contract

between itself and MTI does not make defendant a

party to petitioner’s own contract with MTI.

Furthermore, petitioner was not party to the

contract between defendant and MTI. Contrary to

the affidavits of Bartrug and defendant’s purchasing

agent Barbara Toler, defendant did not specifically

request the services of petitioner as an HVAC

engineer. Petitioner was not distinguished from any

of MTI’s other mechanical engineers. No Union

Carbide purchase order for his explicit HVAC

services existed. When so requested, under rule 34

FRCP, defendant failed to produce a purchase order

that specifically showed petitioner’s name.

As to acts of parties outside the relationship

between petitioner and MTI, his employer, any act

that prevented petitioner’s performance would be an

act of interference. When defendant informed

20

petitioner that he was terminated and took his

electronic gate pass, both he and MTI were

prevented from performing.

(3) As to proof that the interference caused the

harm sustained, the act is not so far removed, either

in fact or in law, as not to be obvious. Defendant did

not deny that it gave petitioner notice of

termination of employment.

(4) As to damages, these were stated in the

pleadings and are ongoing. They continue to accrue

because petitioner has found only intermittent

employment.

Defendant claimed that petitioner had not met his

burden of proof as to factors (2) and (3) listed supra in

C. W. Development, Inc. v. Structures, Inc. Defendant

argued that the actions it took were within its rights

under its contract with MTI.

Article VII (a) of that contract states:

“The work shall be performed by Contractor as an

independent contractor, and all its [contractor's]

employees engaged in the performance of the work

shall be employed, promoted, disciplined,

discharged, and assigned solely by contractor ....”’

(Emphasis added).

Furthermore, Article XVIII (a) of that contract limits

all notices affecting the contract to notices given in

writing between designated representatives of the two

parties, which the contract named as Fred Carney for

MTI and Barbara Toler for defendant. Clause (c) of this

article provides against any other means of giving notice

other than in writing. No article in that contract between

defendant and MTI provides for defendant to single out

one of MTI’s employees and terminate him.

In its attempt to justify its interference defendant

listed the factors identified in Section 767 of the 2nd

Restatement of Torts and claimed, without any

21

specificity whatsoever, that an application of those

factors established that the interference was proper. The

factors are listed below:

(a) the nature of the actor’s conduct,

(b) the actor’s motive,

(c) the interests of the other with which the

actor’s conduct interferes,

(d) the interests sought to be advanced by the

actor,

(e) the social interests in protecting the freedom

of action of the actor and the contractual interests

of the other,

(f) the proximity or remoteness of the actor’s

condut to the interference, and

(g) the relations between the parties.

The listing of the factors alone, with no other pleading

than that the actions which defendant took were within

its rights under its contract with MTI, fails to show that

petitioner’s claim was missing any essential element. On

the contrary, an argument was made that the factors,

when considered in light of the facts, tend to do the

opposite.

As a matter of law, the fact that defendant had a

contract with petitioner's employer does not justify

defendant’s interference in petitioner’s contract unless

such interference advances defendant’s own legitimate

interests. The existence of such a contract, by itself, does

not give defendant the right to interfere in another’s

contract. This principle of law is illustrated by the case

of Jack D. Smith v. Ford Motor Company, et al, 221

S.E.2d 282.

Ford Motor Company had a contract with Cloverdale

Ford, Jack Smith’s employer. The court held that Jack

Smith could maintain his interference action against

Ford Motor because Ford Motor had no other reason for

its interference other than its dislike of Smith’s activity

22

in the alliance of the dealers association. The fact that

Ford Motor had a contract with Cloverdale Ford was not

sufficient to defeat Smith’s claim. This principle is

upheld in Childress v. Abeles, 84 S.E.2d 176, in which

the court stated:

“(T]he overwhelming weight of authority in this

nation is that an action in tort lies against an

outsider who knowingly, intentionally, and

unjustifiably induces one party to a contract to

breach it to the damage of the other party.”

The Second Restatement of Torts, subsection 766, uses

the clause inducing or otherwise causing in reference to

the above issue.

Both of the above cases are very much similar to the

instant case, wherein defendant’s employee J.A. Bowyer

acted to carry out his threat ‘‘to get Carl Lamb, no

matter what.’’ Defendant’s interference in petitioner’s

contract was tortious and, therefore, improper. Such

interference cannot be defended on the ground that it

was lawful.

A breach of a contract is an unlawful act. Defendant

may not say that its actions were permitted under its

contract and cannot claim that it had a lawful right to

interfere in petitioner’s contract, if the action it took

against petitioner was a breach of the contract under

which it acted. It is true that petitioner could not

complain about defendant’s breach because he was not a

party to the contract breached. It is also true that

defendant may not defend, as a matter of law, that its

action taken against petitioner was the exercise of a

lawful right, if its action breached the terms of the

contract under which it acted, whether petitioner had a

claim for the breach or not. Defendant did not act

lawfully. The contract under which defendant acted did

not provide for it to do what it did.

23

As the above cases show, defendant is required to have

some legitimate reason for such interference, other than

its malice. Defendant failed to make that showing.

Petitioner pleaded that J.A. Bowyer hired N.J. Mabie,

placed him in G.R. Hattiangadi’s group, and then

arranged to transfer the petitioner’s work from A.B.

Williamson’s group to Hattiangadi’s group for the sole

purpose of carrying out his malicious threat to replace

petitioner. The evidence petitioner offered was:

1. Petitioner's own testimony that Bowyer

threatened, without any provocation, to replace him.

2. The affidavit of William Millar, a coworker, as

to petitioner’s excited utterances soon after the

threat was made.

3. The affidavit of Cecil Absten, Jr., which states

that Bowyer had announced to him, “...I am going

to get him [petitioner] no matter what ... If I ever

get the power, I will get rid of Carl Lamb...”

4. An admission by defendant that Bowyer had

recommended hiring Mabie.

5. Defendant’s admission that the petitioner’s

work was transferred from Williamson to

Hattiangadi.

6. Bowyer’s affidavit, which establishes his

knowledge of Mabie’s hiring:

‘| {[A]lthough Norman Mabie was hired in order to

perform general mechanical engineering tasks,

Union Carbide was aware that Mabie had some

background in HVAC work.”

7. Carol Sue Flowers’ affidavit, which does

confirm that Bowyer was responsible for hiring

Mabie and demonstrates Bowyer’s deliberate

insistence on placing Mabie where Bowyer wanted

him. (This testimony could be admissible under the

conspiracy exceptions rule.).

24

To support its defense that petitioner imagined that

Bowyer hired Mabie to replace him, defendant submitted

Bartrug’s affidavit, which stated, in part:

‘... [Bly mid-1991 the amount of HVAC work that

needed to be performed had decreased sharply. As a

result, it was determined that Union Carbide no

longer needed ... an engineer to perform HVAC

work ... [P]rior to this determination, Norman J.

Mabie was hired as an employee of Union Carbide as

an engineer. Although Mr. Mabie does have some

HVAC background and may undertake some of the

... HVAC work that now needs to be done, Mr.

Mabie was not hired to replace Carl Lamb...”

Defendant also submitted the affidavit of its employee,

J.A. Bowyer, which includes the following:

‘“...In mid-1991 the amount of HVAC work that

needed to be performed ... had decreased sharply

... [A]lthough Norman Mabie was hired in order to

perform general mechanical engineering tasks,

Union Carbide was aware that Mabie had some

background in HVAC work, and it was determined

that the ... remaining HVAC work could be

performed by Norman Mabie ...”’

As stated supra, defendant could not prove that it had

specifically requested from MTI the services of an

HVAC engineer. Nevertheless, petitioner, a mechanical

engineer by trade, was assigned to perform HVAC work

for defendant. Petitioner was no more limited to HVAC

work than was Mabie, as both were mechanical engineers

by trade. Therefore, Bartrug’s statement that the

defendant did not replace petitioner with Mabie was

contradicted by assigning Mabie, who was also a

mechanical engineer by trade, the responsibility of

performing petitioner’s work.

This position is further corroborated by the petitioner's

unrebutted pleading, which includes the following:

25

“,,..({OJn the first hour of his first day of

employment, Mabie was escorted to petitioner's

office. His very first words were ‘Which one of you

guys does the HVAC?’ [Mabie then said to

petitioner] ‘...[YJou are supposed to show me all

that you are doing ...’”’

In light of the fact that mabie was escorted directly to

petitioner’s office on his first day in defendant’s employ

and subsequently instructed the petitioner to show him

all HVAC work that petitioner was performing, it

becomes evident that:

(1) Mabie’s hiring was a premeditated attempt to

replace petitioner.

(2) Mabie was engaged to perform HVAC work,

rather than the ‘general mechanical engineering

tasks’’ that the defense maintains is the case.

Furthermore, the claim by Bowyer and Bartrug that

Mabie was hired to perform ‘general mechanical

engineering tasks’ is inconsistent with defendant’s

statements in the article that appeared in The Charleston

Gazette, which referred to forthcoming layoffs. It is

unusual that a company experiencing a downturn would

hire for general mechanical engineering needs; it would

seem that such a company would hire only for specialty

needs.

In his affidavit, E. Bartrug maintains that, ‘...Mr.

Mabie ... in fact works for a different internal work

group than that for which Mr. Lamb performed his

services.” J.A. Bowyer’s affidavit includes that

‘‘...Norman J. Mabie was ... placed in the work group

supervised by G.R. Hattiangadi.’”’ the above sworn

testimony confirms the petitioner’s claim that Mabie was

placed in G.R. Hattiangadi’s group. Petitioner maintains

that the transfer of HVAC work from A.B. Williamson

to Hattiangadi was not coincidental. Rather, it was a

26

deliberate, premeditated action implemented by

defendant to replace petitioner, who worked under

Williamson.

Bowyer's affidavit also denies that he “threatened to

replace Carl Lamb or state[d] to any third party that...

[he] was going to get Carl Lamb.” Petitioner refuted

Bowyer’s sworn statement via the affidavit of Cecil

Absten, Jr., in which Absten stated, as referred to supra,

that Bowyer did indeed announce his malicious

intentions for the petitioner. |

Bowyer’s affidavit, which was dated January 8, 1992,

stated “*.. .[t]hat as of this date Norman Mabie has only

worked on one HVAC project.” Petitioner has refuted

this by stating that as part of the requirement that he

turn over his work to Mabie, petitioner informed Mabie

that several HVAC jobs were required to be performed in

order to comply with Occupational Safety and Health

Administration (OSHA) laws. Therefore, defendant's

allegations that little HVAC work remained and that

Mabie performed only one HVAC assignment are

contested issues of fact.

Petitioner questioned in his portion of the pretrial

order (in which defendant refused to participate), under

contested issues of fact, ‘‘Does defendant’s oral notice of

termination constitute proper notice of termination, to be

effective as the only notice that plaintiff ever received, in

view of defendant’s contention that it did not terminate

plaintiff?”

Bartrug’s affidavit specifically refers to the

termination of the petitioner:

“.. [P]ursuant to the contract between Union

Carbide and MTI, Union Carbide notified MTI that

it was terminating its request for an engineer to

perform HVAC work.”’

ee ee ea eee ee rs

27

As petitioner has previously argued, defendant did not

specifically request the services of an HVAC engineer in

its purchase order, as the defense has pleaded. Petitioner

responded by affidavit that he could find no person at

MTI who had received any notice of his termination and

named the persons that he had asked. A better proof is

that the contract requires that notices be in writing and,

when requested under rule 34 FRCP, defendant could not

produce any such written notice.

This court stated in Anderson v. Liberty Lobby, Inc.,

477 U.S. 257,

sé

[T}he plaintiff, to survive the defendant's

motion, need only present evidence from which a

jury might return a verdict in his favor. If he does

so, there is a genuine issue of fact that requires a

trial.”’

Obviously, there are genuine controversies of material

fact, since both of the positions maintained by the

petitioner and the defendant cannot be true. Thus, it is a

jury function to decide upon these contested issues of

fact.

There are numerous inferences that may be raised.

According to Adickes v. S. H. Kress & Co., 398 U.S. 144

(1970) at 158-159:

“Credibility determinations, inferences, the weighing

of the evidence, and the drawing of legitimate

interferences from facts are jury functions, not those

of a judge, whether he is ruling on a motion for

summary judgment or for a direct verdict. The

evidence of the non movant is to be believed and all

justifiable inferences are to be drawn in his favor.”’

Defendant submitted its affidavits early in order to

railroad its motion for summary judgment through the

court. The magistrate accepted those affidavits as gospel

truth. His finding of fact is almost an identical copy of

28

defendant’s pleadings and affidavits. In fact, all look as

if they are carbon copies of one another. No one has

considered that each of the defendant’s affidavits wes

contradicted by petitioner after each was filed.

Furthermore, the petitioner’s affidavits are not even

mentioned in any of the documents of the defense or of

the courts. Defendant has not shown that an essential

element is missing from petitioner’s case. Both petitioner

and defendant have shown that the facts need to be

resolved by a jury.

A jury should have decided the following:

(1) Whether it believed petitioner and his

witnesses.

(2) Whether the fact that Hattiangadi did not

himself interview Mabie is unusual, considering that

Hattiangadi was an important group leader and that

Mabie would be working undeyv him.

(3) Whether Bowyer made and carried out threats

against petitioner.

(4) Whether Mabie was indeed hired by

defendant to replace petitioner, thus implementing

Bowyer’s threats.

This case, with numerous contested factual issues,

where petitioner has made a prima facie case in spite of

limited discovery, is not a case for summary judgment.

The questions presented here involve complex issues of

fact, the type of questions that the Supreme Court has

warned “... should seldom be disposed of by summary

procedures.’ Poller v. Columbia Broadcasting System,

Inc., 368 U.S. 464, 82 S.Ct. 486.

Petitioner’s case, like Poller’s case, involved motive,

intent, malice, and issues of fact and credibility. All of

these are jury functions.

<email ea

SD nt ne he Cnr or

i al eet se

29

SUMMARY

Petitioner Is Entitled To A Jury Trial.

Summary judgment by the District Court without a

full and fair hearing was inappropriate. The Appeals

Court failed to consider that its order affirming the

District Court’s decision was contrary to the finding by

another appeals court on a similar issue, and that it

conflicts with previous decisions of this Court. On the

slander claim, what was the missing essential element? If

there was privilege, whether or not there was malice is a

jury function. On the libel claim, the extrinsic facts and

circumstances are for a jury, not a judge, to decide.

On the tortious interference claim, where the most

difficult issue to prove is usually intent, the evidence in

this case clearly shows intent. It is clearly a jury

funciion to decide upon this issue.

Citing again from Anderson v. Liberty Lobby, which

was cited at the beginning of the argument, ‘... [T]he

plaintiff to survive the defendant’s motion, need only

present evidence from which a jury might return a

verdict in his favor. If he does so, there is a genuine

issue of fact that requires a trial.”’

Therefore, according to the conditions set forth above

and in the cases cited herein, the requirements for trial

by jury have been met. The plain simple language of the

Seventh Amendment to the Constitution is clear, and it

is no less important today than it was in 1791. Petitioner

is entitled to a trial by jury.

Respectfully submitted,

Carl V. Lamb, Pro Se

P.O. Box 8612

South Charleston, WV 25303

(304) 755-3518

\

‘

Al

APPENDIX

Notice of Issuance of Mandate from United

States Court of Appeals for the Fourth

Circuit Dated January 12, 1994.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

January 11, 1994

No. 92-1840

CA-91-1049-2

Lamb v. Union Carbide Corp

MANDATE

The judgment of this Court dated 12/8/93 takes effect

today.

BERT M. MONTAGUE

CLERK

A2

Order on Petition for Rehearing with

Suggestion for Rehearing Jn Banc—

Denied January 6, 1994.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

January 4, 1994

No. 92-1840

CA-91-1049-2

CARL V. LAMB,

Plaintiff-Appellant,

Vv.

UNION CARBIDE CORPORATION,

Defendant-Appellee.

ENTERED

Jan—6 1994

ORDER BOOK

| nis cae

On Petition for Rehearing with Suggestion

for Rehearing In Banc

The appellant’s petition for rehearing and suggestion

for rehearing in banc were submitted to this Court. As

no member of this Court or the panel requested a poll on

the suggestion for rehearing in banc, and

A3

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

For the Court,

/s/ Bert M. Montague

CLERK

A True Copy Atteste:

Bert M. Montague, Clerk

BY Pamela K. Stump

Deputy Clerk

A4

Opinion of United States Appeals Court for the

Fourth Circuit Dated December 8, 1993.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Cart V. Lams, a

Plaintiff-Appellant,

v. No. 92-1840

Union Carsive Corporation,

Defendant-Appellee.

Appeal from the United States District Court

for the Southem District of West Virginia, at Charleston.

Charles H. Haden, L-, Chief District Judge.

(CA-91-1049-2)

Submitted: November 4, 1993

Decided: December 8, 1993

Before MURNAGHAN, NIEMEYER, and WILLIAMS, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Carl V. Lamb, Appellant Pro Se. Gary Wayne Hart, Anthony J. Maj-

estro, JACKSON & KELLY, Charleston, West Virginia, for Appel-

lee.

Unpublished opinions are not binding precedent in this circuit. See

LO.P. 36.5 and 36.6.

|

A5

2 Lams ¥. Union Carsipe

OPINION

PER CURIAM:

Appellant appeals from the district court’s order dismissing his

complaint alleging tortious interference with contract, libel, and slan-

der. Our review of the record and the district court’s opinion accept-

ing the recommendation of the magistrate judge discloses that this

appeal is without merit. Accordingly, we affirm on the reasoning of

the district court.* Lamb v. Union Carbide Corp, No. CA-91-1049-2

(S.D.W. Va. June 11, 1992). We dispense with oral argument because

the facts and legal contentions are adequately presented in the materi-

als before the Court and argument would not aid the decisional pro-

cess.

AFFIRMED

*Lamb’s motion to expedite the determination of his appeal is now

moot and is dismissed for that reason.

A6

Order of United States District Court—

Southern District of West Virginia

Dated June 11, 1992.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

ENTERED

JUN 11, 1992

ORDER BOOK

BOO. csisssidnias OOD abies

CIVIL ACTION NO. 2:91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

ORDER

Pending are cross motions for summary judgment.

This matter was previously referred to the Honorable

Jerry D. Hogg, United States Magistrate Judge, for

submission to this Court of his proposed findings of fact

and recommendation for disposition. On April 17, 1992,

Magistrate Judge Hogg submitted his Report-

Recommendation and recommended that Defendant’s

motion for summary judgment be granted, Plaintiff's

A7

motion for summary judgment be denied, and that this

case be dismissed and stricken from the docket of the

Court.

The Plaintiff timely filed objections to the Magistrate

Judge’s Report-Recommendation. Having reviewed de

novo those portions of the Report-Recommendation to

which Plaintiff objects, the Court concludes that the

objections are without merit. Accordingly, the Court

adopts and incorporates herein the Magistrate Judge’s

Report-Recommendation and ORDERS that the

Defendant's motion for summary judgment is granted,

that Plaintiff's motion for summary judgment is denied,

and that this action is dismissed and stricken from the

docket of the Court.

The Clerk is directed to send a copy of this Order to

counsel of record.

ENTER: June 11, 1992

CHARLES H. HADEN II

Charles H. Haden II, Chief Judge

A TRUE COPY, Certified this

JUN 11 1992

RONALD D. LAWSON, Clerk

BY Eugenia Berger DEPUTY

A8

Affidavit of Cecil Absten, Jr.,

Dated January 31, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority, Cecil Absten, Jr., who being duly sworn on his

oath deposes and says as follows:

1. That I am the foreman for the Denny Hill

Company and that I was assigned to work at Union

Carbide Corporation for the past 6 years for the Denny

Hill Company.

2. That I have personal knowledge of the statements

made in this affidavit.

A9

3. That during the past 6 years I performed services

for James A. Bowyer at Union Carbide on more than one

occasion.

4. That during the spring of 1989, James A. Bowyer

stated to me: “Carl Lamb is responsible for the cost

overrun on the dock shelter job. It makes it look like

Steve Brewer and I don’t know what we are doing, and I

am going to get him no matter what.”

5. He also stated the same intention later that same

year saying, “If I ever get the power, I will get rid of

Carl Lamb, Hattiangadi and John Maier.”’

Further this affiant sayeth not.

CECIL ABSTEN, JR.

Cecil Absten, Jr.

The foregoing instrument was acknowledged before me

this 31 Day of January, 1992. by Cecil Absten, Jr.

My Commission Expires March 1, 1999.

JOYCE A. FISHER

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) JOYCE A. FISHER

P.O. BOX 1793

Charleston, West Virginia 25326

My Commission Expires March 1, 1999

Al0

Affidavit of Carol Sue Flowers,

Dated February 25, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

———ee———er eer eee

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority, Carol Sue Flowers, who being duly sworn on

her oath deposes and says as follows:

1. That I am a real estate agent employed by the Old

Colony Company.

2. That I have personal knowledge of the statements

made in this affidavit.

3. That I have known the plaintiff in this case for

eight (8) years, and that he has referred customers to me

from Union Carbide that have resulted in sales, and that

he referred to me a Mr. Norman J. Mabie.

All

4. That on Sunday, June 2, 1991, I drove Mr. Mabie

through Teays Valley, attempting to find a house that he

might rent. I showed him a house in Teays Meadows,

but he-expressed doubt that he could back his boat into

the garage. We drove into Sleepy Hollow Towneship, and

he pointed out Jim Bowyer’s house and said. ‘There's

where the man lives who hired me.” He further stated

that he and Mr. Bowyer had become good friends and

that he might ask if he could park his boat in Mr.

Bowyer’s three-car garage. Mr. Mabie said that,

originally, he was supposed to work for Mr. Bowyer, but

that Mr. Bowyer had insisted that he be placed in

another group than that for which he had been hired.

5. I continued to assist Mr. Mabie for another two

or three weeks until he rented a house on Montrose Hill

in South Charleston.

Further this affiant sayeth not.

CAROL SUE FLOWERS

Carol Sue Flowers

The foregoing instrument was acknowledged before me

this 25 day of February, 1992. by Carol Sue Flowers.

My Commission Expires 3-29-99.

LINDA KAY WENDELL

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) LINDA KAY WENDELL

608-613 MacCorkle Av., SW

ST. ALBANS, W. Va. 25177

My Commission Expires 3-29-99

Al2

Affidavit of Gregory A. Goff,

Dated January 31, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority, Gregory A. Goff, who being duly sworn on his

oath deposes and says as follows:

1. That I am an HVAC Technician employee of the

Denny Hill Company and that I was assigned to work at

Union Carbide Corporation for the past six years.

2. That I have personal knowledge of the statements

made in this affidavit.

Al3

3. That on September 10, 1991, in company with Cecil

Absten, Jr., the foreman of Denny Hill Company, and

Norman J. Mabie, the Union Carbide engineer, I visited

the 2nd floor control room of Union Carbide Corporation,

Building 42 for purposes of investigating loss of air flow.

4. At the site, Norman J. Mabie took exception to the

design of the system we were attending, being critical of

the dampers and their operation. While standing with me

on the platform adjacent to the control room roof and

looking at the HVAC unit, ducts and dampers, he made

the statement to me, “This must be another one of Carl

Lamb’s screw-ups’’.

Further this affiant sayeth not.

GREGORY A. GOFF

Gregory A. Goff

The foregoing instrument was acknowledged before me

this 31 day of January, 1992. by Gregory A. Goff.

My Commission Expires March 1, 1999.

JOYCE A. FISHER,

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) JOYCE A. FISHER

P. O. Box 1793

Charleston, West Virginia 25326

My Commission Expires March 1, 1999

Al4

Affidavit of Gregory A. Goff,

Dated February 26, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority, Gregory A. Goff, who being duly sworn on his

oath deposes and says as follows:

1. That I have personal knowledge of the statements

made in this affidavit.

2. That this affidavit is made to clarify some of the

events of September 10, 1991.

Al5

3. That Norman J. Mabie and I went to Building 42

to investigate loss of air flow. When we got there, it was

obvious that the problem had been corrected and that we

did not have anything to investigate. As we were

leaving, Cecil Absten, Jr., received a message on his

pager to make a phone call, and Mr. Mabie and I waited

for him to make this call. While we were outside the

control room waiting for Cecil Absten, Mr. Mabie began

criticizing the ducts, the dampers, and the HVAC unit.

It was then he said, “This must be another one of Carl

Lamb’s screw-ups.” This startled me. I wasn’t sure that I

had heard him correctly, so I asked him, ““How’s that?’’,

and he repeated the above statement a second time.

When Absten returned, we drove Mabie to Building 82.

4. That after we left Mabie, I told Absten that I

didn’t need Mabie to help me do my work. I then asked

Absten not to involve Mabie in any future work that we

might have to do. Absten then stated that he had asked

Mabie to come along with us in case we needed Mabie to

sign a purchase requisition.

5. That the comments Mr. Mabie made to me were

not on the subject matter of our work. I was not working

on the system that he considered to be a screw-up (nor

was he), and I did not see anything wrong with it. Nor

did I have any interest in his opinion.

6. That I have sixteen (16) years experience in all

areas of HVAC work (including electrical, plumbing,

ducting, controls, and refrigeration), and I feel that I am

qualified to make a distinction between good work and

bad work. I saw no justifiable reason for Mabie’s

comments.

Al6 |

7. That sometime afterwards, I saw Mr. Lamb at the

home of a mutual friend. Lamb asked me, “‘Who did Mabie

make the statement ‘This must be another one of Carl

Lamb’s screw-ups’ to?’’ I then told him that Mabie had

made it to me.

Further this affiant sayeth not.

GREGORY A. GOFF

Gregory A. Goff

The foregoing instrument was acknowledged before me

this 26th day of February, 1992. by Gregory A. Goff.

My Commission Expires February 12, 1995.

JUDITH M. TAYLOR

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) JUDITH M. TAYLOR

120 Ranch Lake Boulevard

Scott Depot, West Virginia 25560

My Commission Expires Feb. 12, 1995

Al7

Affidavit of Carl V. Lamb,

Dated February 26, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority, Carl V. Lamb, who being duly sworn on his

oath deposes and says as follows:

1. That I am Carl V. Lamb, the plaintiff in this case,

and this is my second affidavit.

2. That I have personal knowledge of the statements

made in this affidavit.

Al8

3. That during the two weeks from August 9 to

August 23, 1991, when I was being dismissed from

Union Carbide, I called MTI to determine who, if anyone,

might have knowledge of my termination. I spoke with

Rod Boyle, John Scaff, Fred Carney, Ralph Barnes, Tom

Sikora, and Jackie Hunter. None of them knew anything

about it.

Further this affiant sayeth not.

CARL V. LAMB

Carl V. Lamb

The foregoing instrument was acknowledged before me

this 26 day of February, 1992. by Carl V. Lamb.

My Commission Expires 3-29-99.

LINDA KAY WENDELL

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) LINDA KAY WENDELL

608-613 MacCorkle Av., SW

ST. ALBANS, W. Va. 25177

My Commission Expires 3-29-99

Al9

Affidavit of Carl V. Lamb,

Dated February 6, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority Carl V. Lamb, who being duly sworn on his

oath deposes and says as follows:

1. That I am Carl V. Lamb, plaintiff in this case.

2. That this statement is made for the purpose of

refuting the claim of Thad Epps, spokesman for Union

Carbide Corporation, that he has never heard of me.

A20

3. In June of 1986, I purchased an automobile from

Thad Epps that he represented to me as being in good

condition. Three weeks after the purchase, while driving

on Interstate 64, westbound between Dunbar and Nitro,

West Virginia, the right frame of this automobile

collapsed, allowing the right rear bumper to drop down

and strike the highway.

4. Attached to this affidavit is plaintiff's Exhibit ““B’”’

which is a true copy of the front and back of the check I

wrote to Mr. Epps on the car.

Further this affiant sayeth not.

CARL V. LAMB

Carl V. Lamb

The foregoing instrument was acknowledged before me

thie day of February, 1992.

My Commission Expires 5-23-99.

SHIRLEY T. BIRD

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) SHIRLEY T. BIRD

608-613 MacCorkle Av., SW

ST. ALBANS, W. Va. 25177

My Commission Expires 5-23-99

A21

Affidavit of William Millar,

Dated February, 1992.

IN THE UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

Civil Action

#2-91-1049

CARL V. LAMB,

Plaintiff,

vs.

UNION CARBIDE CORPORATION,

Defendant.

AFFIDAVIT

State of West Virginia

County of Kanawha, to Wit:

This day personally appeared before me the undersigned

authority William Millar who being by me first duly

sworn on his oath deposes and says as follows:

1. That I have personal knowledge of the statements

made in this affidavit.

2. That I am presently employed at Nissan in

Smryna, Tennessee, but was employed by MTI on Union

Carbide work from September 2, 1986. In March 1988, I

was assigned to Building 82 at Union Carbide where I

worked until May 31, 1990, directly with the plaintiff in

this case, Carl V. Lamb.

A22

3. In late February or early March of 1989, Carl V.

Lamb informed me that he was going to a meeting at

Building 202 with James A. Bowyer. Within an hour or

so, Carl Lamb returned. I observed that he was in a

highly excited agitated state, shaking his head from side

to side and talking to himself. When I inquired, ‘What

was the matter?’’, he said, “I can’t believe that he

actually threatened my job.”’ When I inquired further, he

told me that at the meeting he had said to Bowyer that

he would not install a fan if he knew that the installation

was improper and that Bowyer has responded, ‘‘Don’t be

to sure of yourself, I might replace you” and when he

had responded, Bowyer then said that “I will replace

you.

Further this affiant sayeth not.

WILLIAM MILLAR

William Millar

STATE OF WEST VIRGINIA

COUNTY OF PUTNAM

The foregoing instrument was acknowledged before me

this (illegible) day of February, 1992 by William Millar.

My Commission Expires Aug. 14, 2001.

NANCY E. DUECKER

Notary Public

OFFICIAL SEAL

NOTARY PUBLIC

STATE OF WEST VIRGINIA

(Seal) NANCY E. DUECKER

PUTNAM CO. LIBRARY

4219 STATE RT. 34

HURRICANE, WV 25526

My Commission Expires AUG. 14, 2001

A23

Plaintiff's Exhibit ‘‘A’—Newspaper Clipping

from Charleston Gazette, August 8, 1991.

Union Carbide layoffs

likely, official says

rs)

ate erty | "len Carbide

spokesmaa Thad all said

Wednesday.

_ However, the exact number of

company’s second-quarter =

formance were announced July

24, Epps said.

“Carbide Corporation financial

performance over the last two

quarters was to use

_a charitable term,” he said.

“There are other words I could

“The performance was unac-

. Epps said the company is likely

to cut its use of outside contrac-

sion by $200 million within three

years. That division em loys

about 4,600 people sta in-

time,

“The timetable is now.