Lula P. Watters v. Louisiana Pacific Corp. , 156 F. App'x 177 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 28, 2005
No. 05-14033 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00536-CV-CG-M
LULA P. WATTERS,
MIA G. FALLS,
Plaintiffs-Appellants,
versus
LOUISIANA PACIFIC CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 28, 2005)
Before DUBINA, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Lula P. Watters and Mia G. Falls (the “Appellants”) appeal the district
court’s grant of summary judgment to Louisiana Pacific Corporation (“LP”) on
their state-law defamation claims. Those claims arose when the appellants, former
employees of LP, were terminated for allegedly falsifying their time cards. The
appellants claim that company agents made defamatory statements to that effect.
Ultimately, the district court reasoned that the appellants could not establish
the necessary elements of a defamation claim under Alabama law, as the
statements at issue were never published to a third party except under
circumstances that were privileged. In the alternative, the district court held that
the statements were true. Because the record is devoid of evidence that the
statements were published to a third party, we affirm.
BACKGROUND
Prior to their termination, appellants were hourly employees of LP. After an
investigation in which she discussed the appellants with other LP employees,
Caroyln Sarblah (“Sarblah”), a human resources official, determined that they had
falsified their time cards.1 Appellants were then terminated, and filed for
unemployment compensation benefits with the Alabama Department of Industrial
Relations. During administrative hearings held to determine the appellants’
entitlement to such benefits, Sarblah and other LP representatives explained the
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Appellees maintain that any discrepancies in their time cards resulted from the
malfunctioning of the time-keeping equipment and tampering with their time cards.
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course of the investigation and the circumstances surrounding the appellants’
termination.
Aside from the testimony at this hearing and the statements made to other
LP agents in the course of the investigation, the appellants both concede that they
know of no statements made to non-employees concerning the circumstances of
their termination. The record is otherwise devoid of evidence of such
communications.
STANDARD OF REVIEW
We review a district court’s summary judgment ruling de novo, applying the
same legal standards as the district court. Cuviller v. Rockdale County, 390 F.3d
1336, 1337 (11th Cir. 2004). All the evidence and reasonable inferences therefrom
must be viewed in the light most favorable to the appellants, who oppose summary
judgment. Id. Summary judgment is then properly granted where the non-moving
party is unable to establish the existence of each essential element of their case on
which they bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
DISCUSSION
Under Alabama law, to establish a prima facie case of defamation, the
plaintiff must show: (i) that the defendant was at least negligent; (ii) in publishing;
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(iii) a false and defamatory statement to another; (iv) concerning the plaintiff; (v)
which is either actionable without having to prove special harm or actionable upon
allegations and proof of special harm. Gary v. Crouch, 867 So. 2d 310, 315 (Ala.
2003). While the publication element is generally satisfied where the defamatory
matter was communicated to someone other than the plaintiff, id., communications
among employees in the course of transacting the company’s business and in the
scope of the employee’s duties do not constitute a publication. Schrimsher v.
Liberty Nat'l Life Ins. Co., 655 So. 2d 986, 988 (Ala. 1995), citing Cantrell v.
North River Homes, Inc., 628 So. 2d 551, 553 (Ala. 1993). Thus, communications
made to employees in the course of investigating the plaintiff’s employment
behavior do not constitute third-party publication for defamation purposes. Burks
v. Pickwick Hotel, 607 So. 2d 187, 190 (Ala. 1992). Similarly, Alabama statute
provides that communications made in connection with the administration of the
Department of Industrial relations are absolutely privileged and cannot form the
basis for an action for slander or libel in any court. Ala. Code. § 25-4-116 (2005);
see also, Dixon v. Economy Co., 477 So. 2d 353, 354 (Ala. 1985).
Under these standards, the district court was clearly correct in granting
summary judgment based on the lack of any evidence of publication to a third
party. While appellants point to communications that Sarblah made to other LP
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employees in the course of her investigation, the Alabama Supreme Court has held
that such statements do not constitute publication. See Pickwick Hotel, 607 So. 2d
at 190. Likewise, appellants cannot rely on statements made at their
unemployment compensation hearings, as those are privileged by virtue of § 25-4-
116. Accordingly, LP was entitled to summary judgment because appellees failed
to make a sufficient showing that the allegedly defamatory information was
published to a third party, a necessary element of their case on which they bore the
burden of proof. See Celotex, 477 U.S. at 324-25.2
AFFIRMED.
2
Because we affirm the district court based on the lack of record evidence of publication,
we need not reach the district court’s alternative holding that the allegedly defamatory
statements were true.
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