Smith v. Caterpillar Inc , 304 F. App'x 391 ( 2008 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 08a0774n.06
    Filed: December 19, 2008
    No. 07-5312
    United States Court of Appeals
    for the sixth circuit
    VERNON G. SMITH,                                 *
    *
    Plaintiff - Appellant,                    *
    *    Appeal from the United States
    v.                                        *    District Court for the Eastern
    *    District of Kentucky.
    CATERPILLAR, INC.; RON                           *
    GRIFFIN; ALAN SHEPHERD;                          *
    KEN HARTWIG,                                     *
    *
    Defendants - Appellees.                   *
    Before KEITH, GRIFFIN, and JOHN R. GIBSON,* Circuit Judges.
    JOHN R. GIBSON, Circuit Judge.
    Vernon Greg Smith appeals from the district court’s grant of summary judgment against him
    and in favor of Caterpillar, Inc. Smith contends that he was wrongfully discharged from an implied
    employment contract with Caterpillar after he threatened to report potential safety issues to the
    Federal Occupational Safety and Health Administration. He further alleges that Caterpillar breached
    his implied employment contract and that Caterpillar and its employees tortiously interfered with his
    employment. Finally, he asserts that the district court erred in denying his motion to amend his
    complaint and that the district court judge was biased against him. We affirm.
    I.
    *
    The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit Court of
    Appeals, sitting by designation.
    Smith was employed as a maintenance technician at the Danville branch of Caterpillar, Inc.
    from March 22, 1999 until September 19, 2000. Caterpillar’s plant uses a “heat treat line” to harden
    metallic parts. A fault card in the computer monitors the heat treat line. If it senses a mechanical
    problem, it automatically stops the line. In early 2000, Smith claimed that a short in the wire
    connecting the heat line to the computer caused the heat line to repeatedly stop when no fault
    actually existed. Smith’s supervisor Douglas and another maintenance technician worked on the
    problem, but they resolved the problem by disconnecting the fault card and not solving the
    underlying issue.
    Smith approached Douglas with technical diagrams showing that the heat treat line was a
    safety hazard, but Douglas stated that he had investigated the issue and disagreed with Smith’s
    assessment. Smith spoke to Greg Rziplinksi, Douglas’s supervisor, about the issue but came away
    equally dissatisfied. Several weeks later, Smith told his fellow employee Jeff Lamb that if
    Caterpillar did not fix the problem, he would call OSHA about repairing it. The day after, Smith met
    with Ron Griffith, the plant manager, who told him that he did not believe the disconnected card was
    a problem. Nevertheless, Griffith sought the advice of an electrical engineer, Aaron Kinney, who,
    after reviewing the wiring diagrams, thought that the fault card could be a problem. Griffith directed
    maintenance to address the issue in a way that kept the fault card connected to the heat treat line.
    Smith alleges that around this time, he began receiving negative performance reviews from
    Douglas and that Allen Shepherd, the operations manager, began to inquire about his job
    performance. On September 15, 2000, Shepherd conducted a “turnover meeting,” which is held at
    the end of each shift to allow the outgoing technicians to inform the incoming technician about the
    status of repairs and further work that needs to be done in the following shift. During the meeting,
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    Shepherd asked Smith what machines he had serviced that evening, to which Smith named some of
    the machines but then paused, prompting Shepherd to ask what other machines he had worked on.
    Smith replied that he had worked on an accumulator. Shepherd asked which one and, in frustration,
    cursed at Smith. Shepherd informed Smith that he was disappointed with his lack of preparation for
    the turnover meeting.
    After the meeting, Smith told Shepherd that he had no right to talk to him the way he did, to
    which Shepherd reiterated his expectation that Smith should know which machines he repaired
    during his shift. Shepherd asked Smith if he understood these expectations, and Smith did not
    respond. Shepherd told Smith that he would be fired immediately if he did not respond. Smith
    replied that he could fire him if he so desired. Shepherd did not fire him but reported the incident
    to Ken Hartwig, Danville plant’s human resources manager at the time.
    The next day, Hartwig prepared a written warning documenting the incident and asked Lamb
    to bring Smith to his office. Smith claims that Lamb told him that he would be fired if he did not
    quit. Smith met with Hartwig and Lamb in Hartwig’s office. Hartwig told Smith that he needed to
    sign the document, indicating that he had received a written warning. Smith refused, and contends
    that Hartwig told him that he would be fired if he did not sign the warning. Smith refused to sign
    the warning. Hartwig claims that Smith quit; Smith maintains that he was fired. Smith signed an
    agreement to return any Caterpillar property within his possession and left the building.
    II.
    We review de novo a district court’s grant of summary judgment. Hamilton v. Starcom
    Mediavest Group, Inc., 
    522 F.3d 623
    , 627 (6th Cir. 2008). Summary judgment is properly granted
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    where no genuine issue of material fact exists and the moving party is entitled to judgment as a
    matter of law. 
    Id. A. Wrongful
    Termination.
    Under Kentucky law, an employment relationship is generally terminable at will. Firestone
    Textile Co. Div. v. Meadows, 
    666 S.W.2d 730
    , 731 (Ky. 1983). This means that “[a]n employer may
    discharge his at-will employee for good cause, for no cause, or for a cause that some might view as
    morally indefensible.” 
    Id. However, an
    employee can state a claim for wrongful discharge if his
    termination “is contrary to a fundamental and well-defined public policy as evidenced by existing
    law . . . .” 
    Id. (quoting Brockmeyer
    v. Dun & Bradstreet, 
    335 N.W.2d 834
    , 835 (Wis. 1983)).
    Smith contends that he was wrongfully discharged because Caterpillar fired him for
    threatening to call OSHA. Smith failed to specify which well-defined public policy his purported
    discharge would violate, although during his deposition, he specified the federal OSHA statute. As
    the district court recognized, both the federal OSHA statute, 29 U.S.C. § 660(c), and the Kentucky
    OSHA statute, Ky. Rev. Stat. Ann. § 338.121(3), specify that public policy forbids firing in
    retaliation for complaints filed under their respective OSHA statutes:
    No person shall discharge or in any manner discriminate against any employee
    because such employee has filed any complaint or instituted or caused to be instituted
    any proceeding under or related to this chapter or has testified or is about to testify
    in any such proceeding or because of the exercise by such employee on behalf of
    himself or others of any right afforded by this chapter.
    29 U.S.C. § 660(c)(1); Ky. Rev. Stat. Ann. § 338.121(3).
    But under Kentucky law, the public policy rule applies only when the statute creating the
    public policy does not provide a structure for pursuing a complaint under the statute. Grzyb v.
    Evans, 
    700 S.W.2d 399
    , 401 (Ky. 1985). Here, both the federal OSHA statute, at 29 U.S.C.
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    § 660(c)(2), and the Kentucky OSHA statute, at Ky. Rev. Stat. Ann. § 338.121(3)(b), outline a
    procedure whereby a complaint shall be filed with the Secretary of Labor or the Executive Director
    of the Office of Occupational Safety and Health. “Where the statute both declares the unlawful act
    and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the
    remedy provided by the statute.” 
    Grzyb, 700 S.W.2d at 401
    . Therefore, Smith can state no separate
    claim for wrongful discharge. Hines v. Elf Atochem N. Am., Inc., 
    813 F. Supp. 550
    , 552 (W.D. Ky.
    1993) (holding that both federal and Kentucky OSHA statutes preempt wrongful discharge claims
    based on OSHA).
    B. Breach of Implied Contract.
    Smith contends that Caterpillar breached an implied employment contract when it discharged
    him from his employment. While employment for an indefinite period of time may be terminated
    by either party at will, parties can modify the at-will relationship by entering into an employment
    contract that is terminable only pursuant to express terms of the contract. See Shah v. Am. Synthetic
    Rubber Corp., 
    655 S.W.2d 489
    , 491-93 (Ky. 1983). Here, nothing altered Smith’s at-will
    employment status. Indeed, he admitted as much in the third paragraph of his complaint. (“My
    employment was [] terminable at will either by the employer or the employee.”). He reiterated this
    view during his deposition, though he “reserve[d] the right to add something to it later” because he
    may not have understood “what’s going on.”
    Smith nevertheless argues that he had an implied employment contract because he thought
    that (1) Caterpillar was a good company, (2) Caterpillar was a wealthy company, and (3) he was a
    good worker. None of these reasons can transform his at-will employment status into an implied
    contract. There being no contract, his breach of contract claim necessarily fails.
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    C. Tortious Interference.
    Smith contends that Caterpillar tortiously interfered with his employment. Under Kentucky
    law, tortious interference with employment requires a showing of the following elements: (1) the
    existence of a contract; (2) defendant’s knowledge of the contract; (3) defendant’s intent to cause
    breach; and (4) defendant’s conduct that caused the breach. Lovely v. Aubrey, 
    188 F.3d 508
    , 
    1999 WL 701921
    at *4 (6th Cir. 1999) (unpublished) (citing CMI, Inc. v. Intoximeters, Inc., 
    918 F. Supp. 1068
    , 1079 (W.D. Ky. 1995)). Even if we assume that there was a contract between Smith and
    Caterpillar, Caterpillar, as a party to an agreement, cannot tortiously interfere with the performance
    of its own contract. Rawlings v. Breit, 
    2005 WL 1415356
    , at *3 (Ky. Ct. App. Jun. 17, 2005)
    (unpublished). Moreover, Shepherd, Griffith, and Hartwig were acting on Caterpillar’s behalf, not
    in their own interests. Smith did not point to any admissible evidence that would support a claim
    that the individual defendants were acting on their own behalf. Therefore, the individual defendants
    are similarly absolved from this claim. 
    Id. D. Denial
    of Motion to Amend Complaint.
    We review for abuse of discretion a district court’s denial of a motion to amend the pleadings
    on the ground that the motion was untimely and prejudicial. Parry v. Mohawk Motors of Mich., Inc.,
    
    236 F.3d 299
    , 306 (6th Cir. 2000).
    The Federal Rule in effect when the motion was decided provided that leave to amend “shall
    be freely given when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless, to take advantage of
    the Rule’s liberality, the party requesting leave “must act with due diligence.” 
    Parry, 236 F.3d at 306
    (quoting United States v. Midwest Suspension & Brake, 
    49 F.3d 1197
    , 1202 (6th Cir. 1995)).
    Factors that may be considered in deciding whether to permit an amendment include undue delay
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    in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure
    deficiencies by previous amendments, undue prejudice to the opposing party, and futility of
    amendments. Coe v. Bell, 
    161 F.3d 320
    , 341-42 (6th Cir. 1998).
    Here, all motions to amend the parties’ pleadings were due no later than April 28, 2006.
    After the defendants filed their motion for summary judgment, Smith filed his second motion to
    amend on November 28, 2006, alleging claims for tortious interference of a prospective advantage
    and tortious interference with employment. The district court properly deemed that seven months’
    delay between the last date for amendment in the scheduling order and the motion for leave to
    amend, coupled with the prejudice to the defendants of reopening a case that was “essentially
    closed,” justified denial of Smith’s motion to amend. See 
    Coe, 161 F.3d at 341-43
    (considering
    filing motion to amend seven months after last date for amendment “substantial” and combined with
    prejudice to the opposing party of filing new answers and motions—in essence re-opening the
    case—justified denial of motion to amend). Moreover, the district court had already granted him one
    motion to amend. There was no abuse of discretion by the district court.
    E. Judicial Bias and Other Claims.
    Smith claims that District Judge Coffman was biased against him because she was appointed
    by President Clinton with the help of Terry McBrayer, a man who Smith claims to have sued and
    who, as a result, harbors animus against him. See 28 U.S.C. §§ 144 and 455(a). However, recusal
    is necessary only where a “reasonable, objective person, knowing all of the circumstances, would
    have questioned the judge’s impartiality.” See Hughes v. United States, 
    899 F.2d 1495
    , 1501 (6th
    Cir. 1990). This is an objective standard and it is not based “on the subjective view of a party.”
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    Browning v. Foltz, 
    837 F.2d 276
    , 279 (6th Cir. 1988). Here, Smith’s subjective speculation alone
    is insufficient to form the basis of a judicial bias claim. See 
    Hughes, 899 F.2d at 1501
    .
    On appeal, Smith raises other issues such as the constitutionality of the time limitations for
    bringing a lawsuit, his grandfather’s previous lawsuit, and the immorality of big corporations like
    Caterpillar. These claims are either irrelevant or lack factual or legal basis.
    III.
    Accordingly, we AFFIRM the district court’s grant of summary judgment on all claims.
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