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Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." When deciding whether to grant summary judgment in part, the court must ascertain and specify "what material facts exist without substantial controversy and what material facts are actually and in good faith controverted." Fed.R. Civ.P. 56(c).
Rashad Elbeshbeshy was employed by the Franklin Institute in its nuclear structural mechanics unit from January 3, 1984 to April 17, 1984. Elbeshbeshy’s job description involved a technical aspect of drafting proposals after he reviewed the plans for nuclear power plants submitted by architects and engineers to the Nuclear Regulatory Commission, and a marketing aspect of submitting the proposals to the Nuclear Regulatory Commission. Elbeshbeshy drafted two proposals, one concerning "overcooling transient" and one concerning "hydrogen blanketing." His proposals were reviewed by his supervisor, Dr. Vu Con ("Dr. Con") and by Dr. Con's supervisor, Dr. Salvatore Carfagno ("Dr. Carfagno"). Dr. Con believed that the proposals contained substantive shortcomings. Elbeshbeshy did not agree with Dr. Con's assessment. Dr. Carfagno did not express an opinion with respect to the substantive quality of the work, but he did decide that the working relationship between Dr. Con and Elbeshbeshy was not pleasant. On April 17, 1984, the Franklin Institute terminated Elbeshbeshy’s employment. The reason given for the termination in Elbeshbeshy’s employment record was Elbeshbeshy’s "lack of cooperation." A complaint for defamation and wrongful discharged was filed against the Franklin Institute. Presently before the court is the motion for partial summary judgment of the Franklin Institute on the ground that its statement was not defamatory; that the statement that the reason behind Elbeshbeshy’s termination was "lack of cooperation" was not published; that Elbeshbeshy’s claim for defamation is barred by defendant's qualified privilege to evaluate the job performance of its employees; and that punitive damages may not be awarded under Pennsylvania law in a wrongful discharge case.
Should the motion for partial summary judgment be granted?
The court found that the assertion in Elbeshbeshy’s employment record that he was terminated for "lack of cooperation" could be defamatory. It is not unreasonable that the assertion, standing alone, might lead members of the community and third persons to reasonably believe that Elbeshbeshy’s nature was irremediably insubordinate, obnoxious, and antagonistic. As regards the next ground forwarded by the Franklin Institute, publication occurs, however, when the defamer communicates the statement to one other person, even if that one other person is the defamer's agent. Since Elbeshbeshy presented evidence that the statement was communicated to Dr. Con, Dr. Carfagno, and members of the Franklin Institute’s personnel department, the publication element may be satisfied here. Elbeshbeshy, however, presented some evidence that he was terminated for reasons of professional jealousy. Accordingly, the court held that a genuine issue as to a material fact exists here as to whether defendant acted with malice or abused its privilege. Finally, the court held that a claim for wrongful discharge sounds in tort as well as in contract. Although the parties cited no Pennsylvania cases on point, the court noted that courts generally allow recovery of punitive damages for wrongful discharge where the employer acted with malice. Accordingly, the court was not convinced, at this time, that the Pennsylvania Supreme Court would not, in the right circumstances, allow recovery of punitive damages for wrongful discharge.