Fields v. Keith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-10339
(Summary Calendar)
__________________________
SHARON A. FIELDS,
Plaintiff-Appellant,
versus
JANE KEITH;
DARYL M. BRYANT;
DELTA AIRLINES INC.
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
(3:99-CV-2682-L)
___________________________________________________
August 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellant Sharon A. Fields (“Fields”) appeals the
district court’s grant of summary judgment to Defendants-Appellees
Jane Keith, Daryl M. Bryant, and Delta Airlines Inc. (collectively
“Delta”) on her claims of defamation, theft, conversion, invasion
1
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this opinion should not be published and is not precedent except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.
1
of privacy, and retaliation. Finding no error, we affirm.
I.
FACTS AND PROCEEDINGS
Fields worked for Delta as a flight attendant for nearly 30
years. One of her duties was to sell headsets and alcoholic
beverages to Delta passengers. Delta does not closely monitor such
sales, but instead relies on its flight attendants to report their
sales accurately and to turn in all funds received from such sales.
In early 1999, Delta began receiving reports from several
flight attendants that they suspected Fields of mishandling funds
from the sale of alcoholic beverages and headsets. The frequency
and similarity of the complaints prompted Fields’s supervisor,
Betsy Hanry, to bring the matter to the attention of her own
supervisor, Jane Keith, who in turn advised Hanry to contact
corporate security. Pat Dillard, a corporate security
representative, then began an investigation into the complaints
against Fields.
As part of Delta’s investigation, Dillard and Daryl M. Bryant
(also a corporate security representative) traveled incognito on
two flights serviced by Fields and used marked money to purchase
headsets and alcoholic beverages from her on each flight. On the
return flight, Fields was required to make change for numerous
passengers who purchased beverages for cash. As Delta does not
provide its flight attendants with funds to make change, Fields
used excess cash of her own that she carried with her for that
2
purpose.
As was customary, Fields kept the cash from the sale of
headsets and alcoholic beverages in her beverage caddy. At the end
of the flight, however, cash and alcoholic beverages were missing
from Fields’s caddy. Fields would not sign the certification card
in her “liquor kit” because of these discrepancies. Another flight
attendant, who was responsible for completing the liquor form for
the entire flight, wrote on the form that Fields was responsible
for eight bottles of liquor, and the flight attendant in charge
then completed the form.
After the flight, Fields went to the Delta Employees Credit
Union (“DECU”), where she deposited $300 in cash (the same as the
amount of her own funds that she had brought with her aboard the
flight). After the cashier handed Fields her receipt, Dillard and
Bryant appeared and accused Fields of having stolen funds from the
sale of liquor and headset money during the flight. Bryant then
removed bills totaling $80 from the cash Fields had just deposited,
and stated that these bills had been marked by him before the
flight. In the presence of Fields, Dillard, and Keith, Bryant
stated that Fields had stolen funds, including the $80 in marked
bills.2 Bryant also stated that “entrapping” Fields was the
“easiest case [he] had ever had” because Fields was so “stupid.”
2
Of course, given the facts that Fields provided change to
passengers out her own funds and deposited the same total —— $300
—— as she started with, her inclusion of the marked bills in her
deposit proves nothing with respect to the allegations of theft.
3
Keith suspended Fields, pending the investigation’s
completion. Keith then prepared a memorandum recommending that
Fields be terminated. Delta subsequently did so, on the ground
that Fields had improperly handled Delta funds. Although she was
given the option to resign, Fields refused to do so. Shortly
thereafter, Fields was informed of her termination.
Weeks later, Fields filed suit against Delta in Texas state
court, and Delta removed to federal district court. Fields
asserted state-law claims of defamation, theft, conversion, and
invasion of privacy, together with a federal claim that her
termination was in violation of the Railway Labor Act3 (“RLA”). In
short, Fields’s theory of liability is that Delta brought the theft
charges against her in retaliation for her vocal support of a union
organization drive at Delta. Delta denied all liability and moved
for summary judgment on all claims. The district court granted
Delta’s motions and dismissed Fields’s claims with prejudice.4
This appeal followed.
II.
ANALYSIS
A. Standard of Review
We review a grant of summary judgment de novo, applying the
3
45 U.S.C. § 151 et seq.
4
Fields’s claims as to Bryant were dismissed without prejudice
after the district court concluded that he had not been properly
served. On appeal, Fields does not contest the district court’s
dismissal of her claims against Bryant.
4
same standard as the district court.5 A motion for summary
judgment is properly granted only if there is no genuine issue as
to any material fact.6 In deciding whether a fact issue has been
created, we must view the facts and the inferences to be drawn
therefrom in the light most favorable to the nonmoving party.7
The standard for summary judgment mirrors that for judgment as
a matter of law.8 Thus, we must review all of the evidence in the
record, but make no credibility determinations or weigh any
evidence.9 In reviewing all the evidence, we must disregard all
evidence favorable to the moving party that the jury is not
required to believe, and give credence to the evidence favoring the
nonmoving party as well as that evidence supporting the moving
party that is uncontradicted and unimpeached.10
B. Fields’s Defamation Claim: Qualified Privilege
Although Fields has raised several issues on appeal, only one
merits discussion. Fields contends that Delta lost its qualified
5
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
6
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
7
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
8
Celotex Corp., 477 U.S. at 323.
9
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
10
Id. at 151.
5
privilege as an employer to make statements about her suspected
misconduct as an employee because it did so with actual malice. We
agree with Fields’s view of the law but disagree with her assertion
of the presence of actual malice.
Under Texas law, “a communication made on a subject matter in
which the person making it has an interest is privileged if made to
persons having a corresponding interest or duty.”11 Texas courts
have long recognized that the qualified privilege applies to
statements by employers (and their employees) to interested persons
about an employee’s suspected misconduct.12 A qualified privilege
is lost, however, if its holder makes statements with actual
malice.13
As used in defamation cases, “actual malice” is a term of art
which means “the making of a statement with knowledge that it is
false, or with reckless disregard of whether it is true.”14
Reckless disregard, in turn, is defined as “a high degree of
awareness of probable falsity, for proof of which the plaintiff
must present sufficient evidence to permit the conclusion that the
11
Danawala v. Houston Lighting & Power Co., 14 F.3d 251, 254
(5th Cir. 1993).
12
Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816
(Tex. Civ. App.—— Tyler 1980, no writ).
13
Duffy v. Leading Edge Products Inc., 44 F.3d 308, 313 (5th
Cir. 1995).
14
See Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772
(Tex. 1994).
6
defendant in fact entertained serious doubts as to the truth of
[the] publication.”15 Errors in judgment are not enough to support
allegations of actual malice.16 Furthermore, “[f]alsity coupled
with negligence, failure to investigate the truth or falsity of a
statement, and failure to act as a reasonably prudent person are
insufficient to show malice.”17
Fields does not dispute that the statements of which she
complains are privileged.18 Instead, she contends that there is a
material fact issue with respect to whether the statements were
made with actual malice such that the privilege was lost.
Fields has presented no competent summary-judgment evidence to
support her claim that Keith, Dillard, and Bryant made the
statements at issue knowing they were false or with reckless
disregard of whether they were false, i.e., with a high degree of
awareness of probable falsity. In particular, Fields misconstrues
dicta from our opinion in Duffy to stand for the proposition that
a qualified privilege is lost if there is a “fabricated story” or
“ulterior motive” by the defendant.19 But Duffy said no such thing.
15
Duffy, 44 F.3d at 313 (internal quotation marks and citation
omitted).
16
Id.
17
Maewal v. Adventist Health Systems/Sunbelt, Inc., 868 S.W.2d
886, 893 (Tex. App.—— Fort Worth 1993, writ denied).
18
We assume for the purpose of deciding this appeal that the
statements themselves were defamatory.
19
See Duffy, 44 F.3d at 313-15.
7
Rather, that case’s mention of fabrication as potential evidence of
actual malice was referring to a situation in which there were no
underlying allegations of misconduct and the speaker knowingly
misrepresented the existence of such allegations. Here, by
contrast, it is undisputed that Delta received several complaints
from Field’s fellow flight attendants about her suspected
misconduct.
Fields’s reliance on Duffy’s mention of “ulterior motive” as
potential evidence of actual malice is similarly misplaced. Like
the plaintiff in that case, Fields has presented no evidence that
“the investigation was a mere pretext for a decision that had
already been made.”20 Fields insists that the “real” reason for her
termination was retaliation for her vocal support of union-
organizing efforts at Delta. But the bare fact that Fields
supported such efforts is insufficient as a matter of law to
establish the requisite nexus to her termination.21 We have combed
the record in this case but find no facts that could enable a
reasonable jury to conclude that, despite Fields’s subjective
belief, anyone at Delta acted on any anti-union animus in
investigating or terminating Fields.
In sum, Fields has not adduced competent summary-judgment
evidence that Keith, Bryant, or Dillard made any statement that
20
See id. at 314.
21
N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930, 935-36 (5th
Cir. 1965).
8
they either (1) knew was false when they made it or (2) actually
entertained serious doubts about when they made it. As Fields has
failed to raise a material fact issue with respect to actual
malice, we agree with the district court that the allegedly
defamatory statements made in this case were privileged.
Accordingly, summary judgment was providently granted.
III
CONCLUSION
For the reasons discussed above, we affirm the district
court’s summary judgment for Delta and Keith in all respects.
AFFIRMED.
9