Bird v. Continental Airlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51030
ROBERT M BIRD,
Plaintiff-Appellant,
VERSUS
CONTINENTAL AIRLINES, INC,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(A-98-CV-55-SC)
NOvember 5, 1999
Before JONES and DENNIS, Circuit Judges, and PRADO*, District
Judge.
PER CURIAM:**
On January 28, 1997, Robert M. Bird, an employee of America
West Airlines, boarded a plane in Las Vegas, Nevada bound for
Lubbock, Texas. Bird wore black and white zebra-print bikini
underwear, a long-sleeved high collared tee-shirt, blue jean pant
legs from the knees down secured by rubber bands, hiking boots and
*
District Judge for the Western District of Texas, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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a long blue overcoat. After exiting the plane in Lubbock, Bird
opened his overcoat in view of his girlfriend and several
bystanders in the Lubbock International Airport, allegedly as a
practical joke to shock and surprise her as she greeted him. Bird
was arrested for disorderly conduct by Airport Police Officer
Freddie Salazar. After taking Bird to the police station, Officer
Salazar returned to the airport and conversed with Continental gate
agent Jennifer McIntire regarding Bird’s arrest. Salazar informed
McIntire that he wanted to communicate the incident to Bird’s
employer, America West. Salazar also told McIntire that Bird had
been arrested for indecent exposure, although he had actually been
arrested for disorderly conduct. Continental Airlines had formed
a business alliance with America West, and McIntire decided to
report Bird’s conduct. She sent the following Y-mail (internal
email) message first to a single America West division in Nevada,
and after receiving no reply forwarded the message to every America
West terminal in the United States:
HELLO THERE THIS IS JENNIFER AT THE TICKET COUNTER IN
[LUBBOCK] AND I HAD A REALLY INTERESTING STORY TO SHARE
WITH YOU. APPARENTLY ONE OF YOUR CO-WORKERS THAT WORKS
IN GROUND MAINTENANCE BY THE NAME OF ROBERT M. BIRD
DECIDED TO FLASH EVERYONE IN OUR AIRPORT AND WAS ARRESTED
FOR INDECENT EXPOSURE. AS A CONTINENTAL EMPLOYEE I AM
ASHAMED TO KNOW THAT HE ACTUALLY TOLD PEOPLE HE WORKED
FOR [AMERICA WEST] AND HE ATTEMPTED TO GET OUT OF THE
SITUATION BY OFFERING THE POLICE OFFICER TRAVEL VOUCHERS.
I HAVE THE ATTENDING OFFICER HERE AND HE WOULD LIKE THE
ADDRESS OF YOUR STATION SO THAT HE CAN SEND A FULL REPORT
TO THE SUPERVISOR AND OR GENERAL MANAGER.
Bird’s supervisor requested the police report the next day, and
Bird was fired as an alleged result of the Y-mail message.
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Bird filed a claim against Continental Airlines for
defamation. The district court entered summary judgment in favor
of the defendant. Bird appeals.
I. Standard of Review
The standard of review for the granting of a motion for
summary judgment is de novo. See BellSouth Telecommunications,
Inc. v. Johnson Bros. Group, 106 F.3d 119, 122 (5th Cir. 1997).
Summary judgment is warranted when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact”. Celotex v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
II. Analysis
The district court found that Continental Airlines enjoyed a
qualified privilege to distribute the offending Y-mail message to
every America West computer terminal in the country, and in the
alternative concluded that the content of the Y-mail was
substantially true.
Continental Airlines has a qualified privilege for a
defamatory communication regardless of the statement’s veracity
when comments and remarks are made in good faith to a person having
a business interest in the communication. See Free v. American
Homes Assur. Co., 902 S.W.2d 51, 55 (Tex.App.–Houston [1st Dist.]
1995, no writ). A communication loses its privileged status when
it is made to those outside the interest group in question. See
Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.
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1994). Whether the forwarding of the message to all America West
terminals in an attempt to locate a single supervisor exceeded the
permissible scope of Continental’s qualified privilege involves
disputed questions of material fact not appropriate for summary
disposition.
The district court also granted summary judgment on the
alternative ground that the statement at issue was substantially
true. A substantially true statement cannot support a cause of
action for defamation. See McIlvain v. Jacobs, 794 S.W.2d 14, 15
(Tex. 1990). Whether the discrepancies between the actual charge
of “disorderly conduct” and the reported charge of “indecent
exposure” and between Bird’s actual conduct and his reported
conduct of “flash[ing] everyone in our airport” prevent the
statement from being “substantially true” are also disputed issues
of material fact not appropriate for summary judgment.
Therefore, we REVERSE the judgement of the district court, and
REMAND the case for further proceedings consistent with this
opinion.
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