Cavanaugh v. Wal-Mart Stores Inc

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-30001
Summary Calendar
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STEVE CAVANAUGH,

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 5-98-CV-2361
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July 27, 2000

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This appeal presents a defamation claim under Louisiana law.

The plaintiff, Steve Cavanaugh, a former sales representative of

Frito Lay, Inc., alleges that he was defamed by statements made by

employees of the defendant, Wal-Mart Stores, Inc. Specifically,

Cavanaugh alleges that (1) he was defamed as a result of the

publication of a false statement made by Ronald Robinson, a

*
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this opinion should not be published and is not precedent except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.
Wal-Mart employee, and (2) he was defamed by a number of other

unidentified Wal-Mart employees who told other unidentified

Wal-Mart employees that his employment with Frito Lay was

terminated as a result of his use of a racial epithet. The

district court granted summary judgment for Wal-Mart stating that

the plaintiff “has failed to factually support . . . essential

elements” of his claim. Finding no error on the part of the

district court, we affirm.

Under Louisiana law, a defamation claim has five essential

elements: (1) defamatory words; (2) publication (communication to

someone other than the person defamed); (3) falsity; (4) malice,

actual or implied; and (5) injury. See Juneau v. Avoyelles Parish

Police Jury, 482 So.2d 1022, 1026 (La.Ct.App.3d Cir. 1986)(citing

Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196

(La. 1980)). As a general rule, defamation “constitutes an

individual tort that does not give rise to solidary liability.”

Manale v. City of New Orleans, Dept. of Police, 673 F.2d 122, 126

(5th Cir. 1982)(citations omitted). An exception to this general

rule has developed “when an employee makes a slanderous statement

within the course and scope of his employment.” Id. (citations

omitted); Melancon v. Hyatt Corp., 589 So.2d 1186 (La.Ct.App.4th

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Cir. 1991).1 Under such circumstances, “the employer is solidarily

liable.” Id.

We start this analysis by noting that the only defendant in

this case is Wal-Mart. Consequently, Cavanaugh cannot state a

viable cause of action for defamation based on the conveyance of

the allegedly defamatory statement from Robinson to his manager at

Wal-Mart. If a viable cause of action exists as a result of the

publication of the statement by Robinson to Wal-Mart, it lies

against Robinson in his individual capacity, not against Wal-Mart.

We now turn to the allegation that Wal-Mart defamed Cavanaugh

as a result of conveying the allegedly defamatory statements of

Robinson to Frito Lay.2 Accepting the facts as stated in

Cavanaugh’s affidavit and viewing them in the light most favorable

1
As noted by the Manale court, a statement will be deemed made
in the “course and scope of employment” when: (1) it was “primarily
employment related”; (2) it was reasonably incidental to the
performance of employment duties; (3) it occurred on the employment
premises; and (4) it occurred during working hours. See Manale,
673 F.2d at 125.
2
In his affidavit, Cavanaugh states that he was falsely
accused by Robinson of uttering a racial epithet. The affidavit
goes on to state that as a result of Robinson reporting this
conduct to his manager, Wardell Williams, Cavanaugh was confronted
by Williams in the presence of his manager at Frito Lay, John
Brewton, with the accusation. In the course of this interview,
Cavanaugh denied uttering the racial epithet. He did, however,
admit to uttering other profanity--a clear violation of Wal-Mart’s
store policy. Consequently, Wal-Mart suspended Cavanaugh from its
Bossier facilities for ninety days as a result of Cavanaugh’s own
admission that he uttered profanity.

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to Cavanaugh, it is clear that Wal-Mart knowingly published a false

statement to Frito Lay (we will assume that Wal-Mart is charged

with Robinson’s alleged knowledge of its falsity). It is equally

clear, however, that Cavanaugh has failed to show that he suffered

any injury as a result of the publication of this statement. The

undisputed evidence in the record indicates that Frito Lay

terminated Cavanaugh’s employment because Wal-Mart would not allow

him to service its store for ninety days, not because of the

publication by Wal-Mart to Frito Lay that Cavanaugh had used a

racial epithet.3 In short, Cavanaugh has failed to show any injury

resulting from the publication of Robinson’s allegedly defamatory

statement to Frito Lay, the only third-party with respect to which

the record supports a finding of publication.4 Thus, Cavanaugh has

failed to demonstrate the existence of genuine issues of material

3
It appears that Cavanaugh’s theory may be that he lost his
job with Frito Lay because Wal-Mart wrongfully suspended him from
servicing its facility based on the defamatory charge that he used
a racial epithet--in other words, Wal-Mart is liable to him because
it caused his discharge by wrongfully suspending him. This theory,
however, does not allege any injury caused by Wal-Mart’s
publication of a defamatory statement to Frito Lay; it alleges an
injury based on Wal-Mart’s conduct, not its defamatory words.
4
Cavanaugh alleges that as a “result” of losing his job, he
suffered “psychological and emotional” injuries. Because these
alleged emotional injuries resulted from the loss of his job
because he could not service Wal-Mart, not from the publication of
the defamatory statement by Wal-Mart to Frito Lay, they are
insufficient to establish injury for purposes of Cavanaugh’s prima
facie case of defamation, the only claim he brings against
Wal-Mart.

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fact regarding an essential element of his defamation claim, to

wit, an injury resulting from the defamatory publication, and

Wal-Mart is entitled to judgment as a matter of law. See Spicer v.

Louisiana Power & Light Co., 712 So.2d 226, 228 (La.Ct.App.4th Cir.

1998)(stating that summary judgment for the defendant is

appropriate if the plaintiff has “failed to factually support an

essential element of an action in defamation”).

Addressing the defamation claim of Cavanaugh against Wal-Mart

stemming from the statements of various unidentified Wal-Mart

employees, Cavanaugh’s complaint states that

since being fired from Frito-Lay[,] the plaintiff has
learned that employees at Wal Mart have repeated the
story that he had been fired because of using the racial
slur. . . . The false and derogatory statement made
against plaintiff by Wal Mart, Inc. and its employees
have defamed the plaintiff and severely damaged his
reputation in his community, particularly in his work
community, since he is a route salesman and has numerous
customers.

In his complaint, Cavanaugh fails to identify any employee of

Wal-Mart who was responsible for disseminating this information, or

give any information regarding when the information was conveyed or

for what reason. Further, in response to Wal-Mart’s motion for

summary judgment, Cavanaugh fails to provide any further evidence

regarding these “defamatory statements.” Consequently, Cavanaugh

has failed to allege sufficient facts to raise a genuine issue

regarding whether the “defamatory statements” were made by

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Wal-Mart’s employees during the course and scope of their

employment. See Wells v. Shop Rite Foods, Inc., 474 F.2d 838, 840

(5th Cir. 1973)(stating that under Texas law vague unattributed

statements of employees are insufficient to hold their employer

liable in defamation); Juneau, 482 So.2d at 1027 (stating that

“broad allegation in plaintiff’s petition of the defendants acts of

defamation” absent “specific references to defamatory remarks made

by any of the [defendants]” do not state a cause of action for

defamation). Thus, Wal-Mart is entitled to judgment as a matter of

law on this claim. See Spicer, 712 So.2d at 228.

The judgment of the district court is therefore

A F F I R M E D.

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