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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1107

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1340%3A1. Public record. Not legal advice.