Opinion
No. 1:98CV306-S-D
May 30, 2000
OPINION
In this case, plaintiff alleges that defendant Standex International Corporation, d/b/a Master-Bilt Corporation(Master-Bilt), intentionally interfered with his employment relationship with the other three defendants. Presently before the court is the motion of Master-Bilt for summary judgment.
FACTS
The plaintiff, Raymond Carter, was employed as a commission salesman for the defendants, Century Papers, Inc., National Sanitary Supply Co., and Unisource Worldwide, Inc. (collectively, Unisource). Raymond was never employed by Master-Bilt and was never a party to any contract with Master-Bilt. Rather, Master-Bilt was a Unisource customer, purchasing various products from it such as toilet paper, paper cups, janitorial supplies, and office supplies. From 1993 until July, 1997, Raymond was the Unisource salesman who handled the Master-Bilt account.
At some point, Master-Bilt began manufacturing beverage coolers and asked its suppliers, including Unisource, for rebates based on its increased purchases. In reality, the rebates from Unisource to Master-Bilt were being deducted from Raymond's commission check. In his responses to interrogatories, Raymond implicates Master-Bilt in this arrangement, stating:
Defendant Master-Bilt and Plaintiff's employer directed that rather than paying Plaintiff the standard "straight commission" from all sales to Master-Bilt, as required by the contract, a rebate would be required to be paid by Plaintiff directly to Defendant. In effect, Plaintiff's "commission" was lowered by the rebates given to the Defendant, thereby interfering with Plaintiff's contract.
Raymond has no evidence to support this allegation, and indeed, Milburn Carter, the materials manager for Master-Bilt, testified that he was not aware of the arrangement between Unisource and Raymond since all of the rebates came in the form of checks drawn on the Unisource bank account. The rebate program to Master-Bilt ended in 1996, with the suspension of the beverage cooler division. It is undisputed that Raymond believed these rebates were actually illegal kickbacks to Master-Bilt, that he vehemently protested the program from its inception, and that sometime in 1997, he contacted state and federal authorities with his suspicions. As it turned out, Raymond's suspicions were baseless.
Over the years, Master-Bilt bought several products from 3M from five or six different vendors, including Unisource. At some point, Milburn determined that it would be more efficient, though no less expensive, to handle purchases of 3M products through one vendor. 3M did indeed offer an "integrated solution program" that fit Milburn's criteria, and consequently, Master-Bilt selected Harwell Distributing as its 3M provider based on its proximity to the Master-Bilt facility. This decision, of course, caused Unisource to lose its 3M business with Master-Bilt, which in turn, significantly affected Raymond's commission; however, it did not prevent Raymond from selling 3M products to his other customers.
Naturally, Raymond was upset about this turn of events and requested a meeting with Scott, Milburn, and a 3M representative in July, 1997. According to Raymond, the purpose of the meeting "was to find out why Master-Bilt was going to quit buying [3M products] from Unisource. . . ." Raymond explained:
And that was the main purpose — because it was none of my business, corporate business, you know, and all that kind of stuff above that. But I did not want to be blamed for losing the business because of my — and, apparently, some people are against me around here now because of all the things coming out.
But, whatever, I was covering myself with Walter first. And then if it's [a] 3M decision, you know, and Unisource and Walter and their business, I'm not in on that part because what's gonna be done is gonna be done. But they couldn't come back — and I had proof to myself and at that table with my boss that, don't blame me for it.
At that time, Milburn explained that the decision to integrate the 3M business had nothing to do with Raymond. During the course of the meeting, Raymond also broached the subject of the discontinued rebates. It is undisputed that approximately six months to a year before this meeting, Scott had told Milburn that he suspected Raymond had gone to authorities with his concerns about the rebate program.
Although Raymond believed he had accomplished his goal in calling the meeting, he does not dispute that he was, in Milburn's words, "very upset, very upset" at its conclusion. Indeed, according to Milburn, "the words [Raymond] used [were] 3M screwed him out of the business." He elaborated:
As [Raymond, Scott, and the 3M representative] were going through our lobby, Raymond was very, very upset. We had other people in our lobby. We had other Master-Bilt people who heard what was said. He got out in our parking lot, and . . . he said, I ought to beat the hell out of all three of you because I've been screwed out of the business. That was what he said.
Shortly thereafter, Raymond was relieved of the Master-Bilt account. According to him, Scott called him into his office and told him, without explanation, he "didn't need to go back to Master-Bilt anymore, that Milburn didn't want [him] back up there." Milburn and Scott gave slightly different versions. According to Milburn, "[T]he next day, Walter called . . . and . . . says, Milburn, I think it's better that I take Raymond off of your account, if you'll agree. And I said, Walter, under the circumstances, I think it's probably a good idea." Scott testified as follows: "I think that I told [Raymond] that because of the strained relationships, I was gonna try to see if I could regain some of the lost business and try to shore up the relationship." After referring to the 3M meeting, Scott explained:
Raymond operates on emotion sometimes, and he was pretty emotional [over losing the business]. And I understand, because with the loss of the business, he was gonna lose income. And Raymond felt like he had serviced the account good and he couldn't understand why he lost the business.
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I may have told [Raymond] that Milburn told me it might be best for me to call on him for awhile.
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I think Milburn told me that it might be better if you call on us for awhile.
When asked if Milburn had requested Scott to "get rid of Raymond," Scott reiterated, "I think our discussion was, I think it would be better for you to call on me for awhile. And I made the decision to tell Raymond not to go back in there again." In any event, Scott told Raymond that he would continue to pay him commission on the Master-Bilt account even though he was no longer servicing it.
This was not the first occasion that Master-Bilt had expressed concerns about Raymond's behavior. Shortly after he began handling the Master-Bilt account, several female purchasing agents for Master-Bilt complained to Milburn, who was their superior, that Raymond "made them feel very uncomfortable by things he said and by some of his actions." For the most part, the women's complaints subsided in 1995, after Raymond was counseled by his superior, Walter Scott, about his speech. Raymond nevertheless admitted that on occasion he "still [called the women `babe,' `sugar,' or `sugar babe'] all the way, whatever, four years later or whatever," and that he would "start saying `babe' again and it didn't really matter, you know." Beyond relaying the women's complaints to Scott, Milburn had no further involvement in the situation.
As to Master-Bilt, Raymond admitted he has no evidence that Master-Bilt "acted towards [him] in a dishonest manner," and indeed, the only fact that "would lead [him] to believe that Master-Bilt . . . interfered with [his] employment relationship [with Unisource]" is "being told not to come back to Master-Bilt's premises. . . ."
DISCUSSION
The four elements for tortious interference with contract are as follows: (1) the acts were willful and intentional; (2) they were calculated to cause damage to the plaintiff in his lawful business; (3) they were done with the unlawful purpose of causing damage and loss without right or justifiable cause, i.e., with malice; and (4) actual damage and loss resulted. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 48 (Miss. 1998). "In addition, the plaintiff must prove that the contract would have been performed but for the alleged interference." Par Industries, 708 So.2d at 48.
In this case, plaintiff has only conjecture, not evidence, to support his allegation that Master-Bilt had any role in the deduction of the rebates from his commissions. Even assuming for purposes of this motion only that the arrangement violated plaintiff's contractual agreement with Unisource (a point which the court does not reach at this juncture as it forms part of the basis of plaintiff's claims against Unisource and is addressed in a separate motion for summary judgment), plaintiff has no proof that Master-Bilt had any role, other than asking Unisource for the rebate, in determining the source of the rebate. As the Fifth Circuit has pointed out, "A party bearing the burden on an issue cannot sit back and wait for trial when his opponent points out, in a motion for summary judgment, that no evidence has been presented on the issue." Page v. Dalian, 837 F.2d 233, 238 (5th Cir. 1988). Without an evidentiary basis, the allegation standing alone clearly then cannot underpin a claim for tortious interference with contract.
The second and third bases for plaintiff's claim that Master-Bilt tortiously interfered with his contract with Unisource involve the decisions by Master-Bilt to consolidate its 3M purchases with a local vendor and plaintiff's removal from the Master-Bilt account. Though plaintiff generally avers that a jury could find that these decisions were prompted by plaintiff's complaints about the rebates, especially in light of Milburn's role in both decisions (this, of course, gives plaintiff the benefit of the doubt with regard to Milburn's participation in the decision to relieve plaintiff of the Master-Bilt account), the court finds plaintiff's arguments specious at best. The court reaches that conclusion for several reasons. First, plaintiff himself recognized that the 3M decision was a "corporate decision," even if, as he later argues, it was not "logical" and carried "no economic advantage" to Master-Bilt. Second, although plaintiff does not believe there was anything "out of place about his behavior" at the July meeting, he does not contest either Milburn's or Scott's accounts of his outburst after the meeting. Furthermore, Raymond acknowledges that he had previously been cautioned about his language towards the female Master-Bilt employees. Though he questions the veracity of those who implicate those incidents in the decision to remove him from the Master-Bilt account, since, after 1995, he was not formally disciplined further for his language, he conceded in his deposition that he was wont to return to the offensive pattern of addressing the women. And finally, Raymond does not dispute that his suspicions about the legality of the rebate program were unfounded.
Though both decisions involving Master-Bilt affected plaintiff adversely, that fact does not automatically translate into the calculation and maliciousness necessary to support a claim for malicious interference. Under the law, a business customer, in the absence of malice or ill will, retains control over its corporate decisions without fear of repercussion, even where those decisions have economic consequences for third parties such as plaintiff and, at least as to the 3M decision, Unisource as well. At this stage, the question is not whether a jury could find the actions of Master-Bilt to be improper but rather whether it could reasonably do so. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court does not believe plaintiff can pass this hurdle, and therefore, the court finds that plaintiff has failed to come forward with anything more than a mere scintilla of evidence to support his belief that the actions of Master-Bilt were calculated to cause him damage or that they were done with malice. The motion of Master-Bilt for summary judgment is well taken, and all claims against it are hereby dismissed with prejudice.
An appropriate order shall issue.