Round v. Boeing North America ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
OLIVER W. ROUND, JR.,
Plaintiff-Appellant,
v.
No. 98-2344
THE BOEING NORTH AMERICAN
SERVICES, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-98-237-A)
Argued: May 6, 1999
Decided: June 23, 1999
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Clara Anne Williamson, Alexandria, Virginia, for Appel-
lant. Curtis Lee Mack, MACK & MCLEAN, P.A., Atlanta, Georgia,
for Appellee. ON BRIEF: Sonia Elizabeth Hill, MACK &
MCLEAN, P.A., Atlanta, Georgia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Oliver W. Round, Jr. filed suit in the Circuit Court of Fairfax
County, Virginia claiming that his former employer, The Boeing
North American Services, Inc. (Boeing), defamed him in an employ-
ment termination letter by accusing him of signing false time sheets
and defrauding the government, and that Boeing did so with the
knowledge that such statements were false or, in the alternative, with-
out reasonable grounds to believe the statements were true. Round
also claimed that the accusatory statements constituted insulting
words as made actionable by Va. Code Ann. § 8.01-45 (Michie 1992).
Boeing removed Round's suit to the United States District Court
for the Eastern District of Virginia and moved for summary judgment.
The district court granted summary judgment to Boeing after deter-
mining that Boeing possessed a qualified privilege under Virginia law
to communicate to its management the accusations against Round and
that Round failed to overcome the privilege by adducing evidence of
malice on the part of Boeing. The district court subsequently denied
Round's motion to reconsider and awarded Boeing its costs of
defending Round's suit. Round noted a timely appeal of these rulings.
Finding no error, we affirm.
Round began his employment with Rockwell International Corpo-
ration in March of 1992 as a plumber. Round's duties included per-
forming preventative maintenance and repairing plumbing, heating,
and air conditioning systems. In December of 1996, Rockwell Inter-
national Corporation began operations as The Boeing North American
Services, Inc., and Round became an employee of Boeing. At the time
of his discharge, Round worked at a government site maintained by
Boeing named International Point (IP) in Herndon, Virginia. Round's
normal working hours were from 6:30 a.m. to 2:30 p.m., with no
lunch break. As part of his job responsibilities, Round was required
2
to record accurately on company timesheets the time he spent work-
ing on job-related activities.
On July 24, 1997, Boeing received an anonymous letter accusing
several employees of falsifying their time sheets. The letter specifi-
cally stated that Round was "said to be leaving at least a half hour
early each day, yet recording 8 hours on his timesheet." (J.A. at 122.)
Upon receipt of the letter, Boeing's Washington Operations Manager,
Kenneth T. Alexander, initiated an investigation led by Boeing's
heads of security, Luther Nossett and Edward Stevens. As part of the
investigation, Nossett and Stevens interviewed two individuals identi-
fied in the anonymous letter as possessing knowledge of the timesheet
violations. These two individuals confirmed that some of the allega-
tions in the letter had validity and should be investigated. Thereafter,
Boeing obtained turnstile data from the government for the main
building at the IP facility between April 1, 1997 and July 17, 1997,
for all IP employees. The turnstile recorded the time each employee
entered and exited the building. In reviewing the turnstile data, Ste-
vens looked at the time of entry and the time of exit and considered
the time between the entries as time spent working.
After examining the turnstile data on Round, Stevens determined
that there were more than twenty-five occasions in which the turnstile
indicated that Round had worked fewer than the eight hours recorded
on his timesheet. Stevens subsequently conducted surveillance on
Round on August 22 and 29, 1997. On August 29, Stevens personally
observed Round arriving at the facility at 6:25 a.m. and leaving at
1:54 p.m. Based on these arrival and departure times, Round was at
the worksite for 7 hours and 29 minutes. Nevertheless, Round
recorded that he worked eight hours on August 29.
On September 3, 1997, Stevens met with Round to obtain his
explanation of the events and information obtained during the investi-
gation. Stevens told Round that Boeing had received an anonymous
report that Round was leaving work earlier than his timesheet indi-
cated and that turnstile data confirmed his timesheet misdocumenta-
tion. Stevens drew Round's attention to the previous Friday, in which
he had witnessed Round coming in at 6:25 a.m. and leaving at 1:54
p.m. Round repeatedly stated that he couldn't remember leaving work
3
early that day.1 Stevens also asked Round if he could account for sev-
eral other instances in which it appeared that he had left work early
and was overcharging the government. Round could not recall what
happened on the specific dates that Stevens had mentioned. Instead,
Round explained that he would often engage in job-related discus-
sions with one of the guards outside the building for five or ten min-
utes before walking through the turnstile. Round also explained that
he was often called to do work outside of the turnstiles, such as at the
cafeteria, the cooling tower, and the generator building, and he would
not reenter the building through the turnstiles before leaving for the
day. At no point in the interview, however, did Round give Stevens
the names of any Boeing employees who could verify his explana-
tions. At the conclusion of the meeting, Stevens informed Round that
he was being suspended with pay pending the completion of the
investigation.
Alexander reviewed both the tape and the transcript of Stevens's
interview with Round. Based upon this interview, the turnstile data,
and the interview with the two employees named in the anonymous
letter, Alexander concluded that Round was signing false timesheets
and defrauding the government. After consulting with Boeing's Vice
President, Graeme Calow, Alexander decided to terminate Round's
employment with Boeing. Alexander then had Sandy Ammons, Boe-
ing's Human Resources Manager, prepare Round's termination letter.2
The last paragraph of the letter gave Round the opportunity to provide
any information relevant to Alexander's decision.
On September 5, 1997, Round was called into Alexander's office.
Ammons was also present in the office. Alexander informed Round
_________________________________________________________________
1 On September 4, 1997, Stevens received a call from Round explain-
ing that he had left early on Friday, August 29, because he had defecated
in his pants. Round acknowledged that he failed to report this incident
to his immediate supervisors or anyone else on August 29, and that he
had not amended his timesheet upon returning to work. Stevens relayed
this information to Alexander. Neither Alexander nor Stevens believed
Round's explanation.
2 Prior to preparing Round's termination letter, Ammons had investi-
gated whether Round may have split his work with one of the other Boe-
ing facilities and concluded that he did not.
4
that he was being terminated for timesheet violations. Alexander also
gave Round his termination letter, which contained accusations of
fraud and intentional timesheet falsification, and asked Round if he
could explain away any of the accusations in the letter. Round replied,
"I don't know," and remained silent for the remainder of the meeting.
(J.A. at 97.) In addition to Alexander, Round's termination letter was
distributed to the following members of Boeing's management, in
accordance with Boeing's policy regarding the reporting of alleged
violations by Boeing's employees: John Davidson (President), Scott
Drach (People Manager), Calow, and Ammons. Round acknowledged
that he had no evidence that anyone other than these five persons
received a copy of the termination letter.
In January 1998, Round brought the instant suit seeking recovery
for defamation and for insulting words as made actionable by § 8.01-
45 of the Virginia Code (the Insulting Words Statute).3 Round based
his suit on the accusations in the termination letter, and in particular,
the following passage:
While this is your first detected violation of company time
sheet policy, there are actually more than 25 total incidents
in which the Government has been defrauded by paying you
a salary for time you did not work. . . . They will require that
Boeing take immediate corrective steps to reimburse the
Government for money paid to you fraudulently for time not
worked.
. . . Yet, it is clear that you have repeatedly signed many
false timesheets and accepted money for time you did not
work.
(J.A. at 347.) Round later admitted that he had no evidence suggesting
that Alexander and Stevens had any reason to believe that the state-
ments were false.
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3 Section 8.01-45 provides: "All words shall be actionable which from
their usual construction and common acceptance are construed as insults
and tend to violence and breach of the peace." Va. Code Ann. § 8.01-45(Michie 1992).
5
In response to Round's complaint, Boeing filed a motion for sum-
mary judgment. In its review of Boeing's motion, the district court
determined that under Virginia law, Boeing possessed a qualified
privilege to communicate the reasons for Round's termination to its
employees, even if the underlying facts turned out to be false, so long
as it acted in good faith. The district court concluded that Boeing had
developed an honest belief that Round had submitted inaccurate
timesheets, based upon the anonymous letter, the turnstile data, the
interview with other employees, and Stevens's interview with Round.
Therefore, Boeing possessed a qualified privilege to circulate
Round's termination letter containing accusations of timesheet mis-
documentation to a controlled group of supervisors, managers, and
security officers. The district court also concluded that viewing the
record in the light most favorable to Round, he had failed to adduce
any evidence that Boeing had acted with malice that would destroy
the privilege. Accordingly, the district court held that Boeing's quali-
fied privilege defeated both Round's defamation claim and his claim
under the Insulting Words Statute and granted summary judgment to
Boeing. The district court subsequently denied Round's motion for
reconsideration and granted Boeing's application for costs.
Round filed a timely notice of appeal of these rulings. Before us,
Round asserts that the district court erred in finding that Boeing pos-
sessed a qualified privilege to communicate the accusations against
Round because Boeing lacked an honest, good faith belief in the truth
of those accusations due to its reliance on questionable sources of
information and because it failed to interview Round's supervisor,
guards, cafeteria workers, generator employees, or cooling tower
employees who could have verified Round's explanations.4 Round
also argues that even if Boeing enjoyed a qualified privilege when it
_________________________________________________________________
4 Round also argues on appeal that while the termination letter was not
disseminated to the government, the accusations of fraud and timesheet
falsification contained therein were and, therefore, defeated Boeing's
qualified privilege. Because the record indicates that Round did not raise
this issue in the district court below, we will not consider this issue on
appeal. See Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (not-
ing that issues not raised below generally will not be considered on
appeal unless refusing to consider them would be plain error or would
result in a fundamental miscarriage of justice).
6
communicated the accusations against Round, it abused the privilege
when it "used stronger and more violent language than necessary, and
which was unnecessarily defamatory of Round and communicated the
statements without believing them to be true and with a reckless dis-
regard for the truth." (Appellant's Br. at 34.)
Summary judgment is appropriate if "``there is no genuine issue as
to any material fact and . . . the moving party is entitled to a judgment
as a matter of law.'" Celotex Corp v. Catrett , 477 U.S. 317, 322
(1986) (quoting Fed. R. Civ. P. 56(c)). Although"[t]he evidence of
the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor," Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986), "there must be evidence on which the jury could reason-
ably find for the [non-movant]," id. at 252. This Court reviews a grant
of summary judgment de novo. See Higgins v. E.I. DuPont de
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
We have reviewed the record, briefs, and pertinent case law on this
matter, and we have had the benefit of oral argument. Our careful de
novo review persuades us that the rulings of the district court were
correct. Accordingly, we affirm on the reasoning set forth in the dis-
trict court's opinions. See Round v. Boeing N. Am. Servs., Inc., No.
CA-98-237-A (E.D. Va. Aug. 7 & Oct. 2, 1998).
AFFIRMED
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