David White v. Bechtel Construction ( 1996 )

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No. 95-2987
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Jerry Freeman; David White; *
Dale Lile, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Bechtel Construction Company, *
*
Defendant - Appellee. *
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Submitted: February 12, 1996
Filed: July 8, 1996
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
In this diversity action, three former employees of Bechtel
Construction Company ("Bechtel") appeal the dismissal of their claims for
the tort of outrage and for defamation that arose out of a disciplinary
episode at their Arkansas workplace. We accept as true the facts alleged
by plaintiffs in their amended complaints for purposes of reviewing the
Rule 12(b)(6) dismissals. See Sharps v. United States Forest Serv., 28
F.3d 851, 853 (8th Cir. 1994). Agreeing with the district court1 that the
complaints fail to state a claim on which relief may be granted, we affirm.
1
The HONORABLE SUSAN WEBBER WRIGHT, United States District
Judge for the Eastern District of Arkansas.
Plaintiffs are journeymen pipefitters who at the time in question
were working for Bechtel on a project at the Entergy, Inc., Nuclear One
power plant in Russellville, Arkansas. Jerry Freeman was a Mechanical
Superintendent; David White and Dale Lile were Foremen. A female
pipefitter complained to Bechtel that Freeman had made a sexually harassing
remark to her, in the presence of White and Lile. Bechtel investigated and
advised that the matter would be dropped. Dissatisfied, the complainant
raised the issue with Entergy. That prompted Bechtel to investigate
further, which culminated in an arbitration hearing at the job site. After
the hearing, Bechtel determined that Freeman had made a harassing remark
which White and Lile failed to report. It suspended all three for five
days, and demoted Freeman.
Unable to obtain relief under the collective bargaining agreement
between Bechtel and the pipefitters' union, plaintiffs filed these two
consolidated actions. Count One of their parallel complaints alleged the
tort of outrage (intentional infliction of emotional distress). Counts Two
and Three alleged defamation by libel and by slander. Prior to deposition
discovery, Bechtel filed motions to dismiss for failure to state a claim.
The district court granted those motions, and plaintiffs appeal.
Count One -- Tort of Outrage. The Arkansas Supreme Court takes "a
very narrow view of claims for the tort of outrage." The conduct at issue
must be "so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in civilized society." Ross v. Patterson, 817 S.W.2d
418, 420 (Ark. 1991). The trial court must initially determine whether
conduct may reasonably be regarded as so outrageous as to permit recovery.
See Smith v. American Greetings Corp., 804 S.W.2d 683, 686 (Ark. 1991).
Review of outrage claims in employment situations is particularly strict
because "an employer must be given a certain
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amount of latitude in dealing with employees." Sterling v. Upjohn
Healthcare Servs., Inc., 772 S.W.2d 329, 330 (Ark. 1989).
In this case, plaintiffs allege that Bechtel, after initially finding
plaintiffs innocent of the sexual harassment complaint, then proceeded to
discipline them while "entertain[ing] serious doubts about the truthfulness
of the [complainant's] statement," knowing that "severe emotional distress
would be the result." We agree with the district court that "Arkansas law
is replete with employment cases in which conduct far more objectionable
than that described in this case still was found insufficient to equal the
tort of outrage." See, e.g., Smith, 804 S.W.2d at 685; Sterling, 772
S.W.2d at 330; Puckett v. Cook, 864 F.2d 619, 622 (8th Cir. 1989).
Therefore, plaintiffs failed to state an outrage claim.
Count Two -- Defamation by Libel. In this count, plaintiffs allege
that a "written, permanent report" of the reason for their discipline "will
go into the file kept by [Bechtel]"; that the report contains an "obvious
defamatory statement"; and that the file "is kept in a central location
where anyone has access, not just individuals that [are] deemed necessary
to further any [Bechtel] interest." We agree with the district court that
these allegations are deficient.
In the first place, the core allegation is speculative -- a permanent
report "will go" into permanent files at Bechtel. Second, no specific
defamatory statement is alleged. It is not "obvious" to us that such a
report would contain a defamatory statement. For example, a report that
simply stated that the female pipefitter complained, that Bechtel
investigated and determined the complaint was well founded, and that
plaintiffs were disciplined based upon that determination, would contain
no statement that is even arguably false, an essential element of
defamation torts. See Mitchell v. Globe Int'l Pub., Inc., 773 F. Supp.
1235, 1238 (W.D. Ark. 1991).
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Third, plaintiffs failed to allege that the reports have in fact been
published to a nonprivileged third party. Arkansas law recognizes a
qualified privilege for employers and supervisory employees dealing with
matters that affect their business. See Ikani v. Bennett, 682 S.W.2d 747,
749 (Ark. 1985); Dillard Dept. Stores, Inc. v. Felton, 634 S.W.2d 135, 137
(Ark. 1982). The investigation of charges of sexual harassment and the
recording of discipline in an employee's personnel file would fall within
the scope of this privilege.
In these circumstances, unless the complaints set forth the alleged
defamatory statements and identify the persons to whom they were published,
Bechtel is unable "to form responsive pleadings." Asay v. Hallmark Cards,
Inc. 594 F.2d 692, 699 (8th Cir. 1979). Count Two failed in this regard
and was properly dismissed.
Count Three -- Defamation by Slander. In Count Three, plaintiffs
allege that defamatory statements were made that each plaintiff made or
condoned a sexually harassing statement and was disciplined, and that these
statements were "orally published around the whole job site and the town
of Russellville." The district court dismissed this count because the
complaints "fail to state how [Bechtel] caused this alleged publication."
We agree.
The complaints allege generally that every statement by a Bechtel
employee is attributable to Bechtel under the law of agency because made
in the ordinary course of business. That is, of course, a gross
exaggeration. Many statements by non-management employees, even statements
made "around the whole job site," are not made in the course of their
employment. And many statements made around the job site would be entitled
to a qualified privilege, for example, statements made in implementing
grievance procedures with the union. Thus, the vague publication
allegations in Count Three suffer from the same deficiencies as those in
Count Two -- they do not identify the defamatory statements with any
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specificity, they do not identify the manner of oral publication, and they
do not allege that Bechtel (that is, a Bechtel agent acting within the
scope of that agency) published the statements to a nonprivileged
recipient.
When a defamation complaint fails to state a claim, it may be error
to dismiss the complaint or strike the deficient allegations without giving
plaintiffs a chance to amend. See Asay, 594 F.2d at 699. But here,
plaintiffs never requested an opportunity to amend. Rather, they requested
an opportunity to take numerous depositions, confirming that their
defamation allegations were made without supporting facts in the hope that
they would be permitted to embark upon a classic fishing expedition. The
district court properly cut short that abuse of the liberal federal
pleading rules by granting Rule 12(b)(6) dismissals.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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