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CUNNINGHAM v. UNITED NATL. BANK OF WASHINGTON

May 4, 1989

BLENNA A. CUNNINGHAM, Plaintiff,
v.
UNITED NATIONAL BANK OF WASHINGTON, et al., Defendants



The opinion of the court was delivered by: REVERCOMB

 GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE.

 The defendants have moved for summary judgment in this case, which involves numerous claims by the plaintiff arising from her termination as a vice president of defendant United National Bank of Washington ("UNB"). Oral argument was heard on January 18, 1989; the plaintiff supplemented her opposition on March 28, 1989. In this Memorandum and Order, the Court (1) denies defendants' motion for summary judgment on the breach of contract claim and on the defamation claims but (2) grants the motion with regard to the plaintiff's claims of intentional infliction of emotional distress and violations of pension law.

 Motions for summary judgment may be granted when the movant has established that there are no genuine issues of material fact in dispute. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). While a nonmoving party may not rest on mere allegations in its pleadings, Anderson, 477 U.S. at 248, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. The standard for denying a motion is whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248. Indeed, when a dispute concerns the credibility of witnesses, only a trial jury, and not a judge weighing summary judgment pleadings, is able to assess the demeanor and attitude of witnesses.

 I. Breach of Contract

 Under a provision of the National Bank Act, an officer of a national bank may be terminated at the "pleasure" of the bank's board of directors. 12 U.S.C. § 24 Fifth. Plaintiff Blenna Cunningham has admitted that if she was indeed fired pursuant to a proper vote of UNB's board, she loses on her breach of contract claim.

 The members of UNB's board have each provided affidavits stating that the board voted on August 12, 1987, to fire Ms. Cunningham. The defendants argue that these statements, which are not controverted by any direct evidence, are sufficient to grant summary judgment on this issue. The Court disagrees.

 Plaintiff has submitted considerable circumstantial evidence to the effect that the board did something less than conclusively vote to fire Ms. Cunningham on August 12, 1987. First, one of the board members has testified that it was less than clear to her whether the board formally voted to fire Ms. Cunningham without qualification.

 Third, the plaintiff has presented strong evidence that the purported minutes of the board meeting of August 12, 1987, which indicate that the board fired Ms. Cunningham, have been altered, tampered with, or otherwise dealt with in a suspect manner.

 In sum, the Court concludes that it cannot at this time grant summary judgment on the breach of contract claim because the plaintiff has met her burden of proving that there is a genuine issue concerning whether UNB's board fulfilled the requirements of 12 U.S.C. § 24 Fifth. The Court DENIES the motion for summary judgment on the breach of contract claim without prejudice to renew on the ground that the plaintiff's allegations do not amount to a cognizable claim for breach of contract.

 II. Defamation

 The plaintiff claims that the defendants have defamed her through, among other things, (1) interviews mentioned in newspaper articles that did not refer to her by name but concerned problems and changes at the bank in 1987; (2) an affidavit filed by a UNB employee alleging a lack of an arm's length relationship in some of the plaintiff's business dealings; and (3) defamatory oral statements allegedly made by UNB employees.

 First, when a plaintiff alleges defamation with regard to statements that are of "public concern," whether or not the plaintiff is a "public figure," the plaintiff has a burden under the first amendment of proving that the statements are false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986). Although the Philadelphia Newspapers case applied only to media defendants and left open the question whether the standard protects nonmedia speakers, this jurisdiction has extended the doctrine to nonmedia defendants. See Pearce v. E.F. Hutton Group, Inc., 664 F. Supp. 1490, 1511 (D.D.C. 1987) (statements involved the banking industry). Accordingly, the Court in the instant case rules that the plaintiff has the burden of ...


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