UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 92-3415
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KENDALL STOCKSTILL,
Plaintiff-Appellant
Cross-Appellee,
versus
SHELL OIL COMPANY,
Defendant-Appellee
Cross-Appellant.
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Appeals from the United States District Court for the
Eastern District of Louisiana
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(September 27, 1993)
Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL1,
District Judge.
Zagel, District Judge.
I.
Kendall Stockstill is a former employee of Coastline
Construction, Inc., an independent contractor that supplies welding
services to Shell Oil Company. In the fall of 1988 Shell informed
Coastline that Stockstill would no longer be allowed on Shell
facilities. Shell's action against Stockstill stemmed from its
investigation of a sexual harassment and discrimination charge
1
District Judge of the Northern District of Illinois,
sitting by designation.
filed in the summer of 1988 by B. J. Holcombe, a former employee of
a Shell subsidiary. As part of its investigation into Holcombe's
charge, Shell interviewed an employee named Galen "Skipper" Berne.
Berne told Shell's investigators that he had seen touching and
heard name calling between Holcombe and Stockstill. Berne also
said he had heard rumors that Stockstill placed a dildo in
Holcombe's lunch bag. This information led Shell to ban Stockstill
from its facilities. Shell did not interview Stockstill or B. J.
Holcombe as part of its investigation.
Stockstill filed a charge of age discrimination against Shell
with the Equal Employment Opportunity Commission (EEOC).
Subsequently, Stockstill filed suit in federal district court
alleging age discrimination, as well as violations of ERISA and
Title VII against Shell and Coastline. Ann Ford, a Shell employee,
was responsible for coordinating the company's response to charges
filed with the EEOC. Ford had several telephone conversations with
Althea Bertrand, an EEOC investigator, about Stockstill's age
discrimination charge. Bertrand asked Ford why Shell barred
Stockstill from its facilities. When first confronted with this
question, Ford explained that Shell was not accusing Stockstill of
sexual harassment but that he had engaged in inappropriate conduct
in violation of Shell policies. Ford based her explanation on
information contained in the investigative file compiled in
connection with B. J. Holcombe's charge of sexual harassment and
discrimination. In a subsequent conversation the EEOC investigator
pressed Ford for specifics. Ford then told Bertrand that
2
Stockstill's conduct was "inappropriate" and "of a sexual nature."
There were no further conversations between Shell employees and
officials of the EEOC. Nor did Shell discuss the investigation
with anyone outside of Shell other than the EEOC.
In 1991 Stockstill filed the defamation suit against Shell
that is the subject of this appeal. The district court granted
Shell's motion to consolidate Stockstill's 1990 action with the
defamation suit. After consolidating the lawsuits, the district
court granted summary judgment for Shell and Coastline on the age
discrimination, ERISA and Title VII claims.2 Before trial, Shell
also filed two summary judgment motions on Stockstill's defamation
claim. In the first motion Shell sought a ruling that statements
made to the EEOC in response to a charge of discrimination are
entitled to a qualified privilege. Shell contended that the
qualified privilege forced Stockstill to prove malice or lack of
good faith in order to prevail. Judge Carr denied the motion
stating that a triable issue remained as to whether Shell acted in
good faith in making the alleged defamatory statements.3 In an
2
The district court entered a partial judgment under Rule
54(b) on the dismissed claims and this Court dismissed Stockstill's
appeal for lack of jurisdiction on February 28, 1992. The United
States Supreme Court subsequently denied Stockstill's application
for a Writ of Certiorari.
3
Judge Carr apparently agreed with Shell that Ford's
statements to the EEOC investigator were qualifiedly privileged.
This must be so since Judge Carr later granted judgment as a matter
of law in favor of Shell because Stockstill failed to show that
Ford made the allegedly defamatory comments with malice or in bad
faith. This would also explain why Shell did not appeal the
district court's denial of their initial summary judgment motion.
3
amended summary judgment motion Shell argued that statements made
to the EEOC in response to a charge of discrimination are entitled
to an absolute privilege. Judge Carr denied Shell's amended motion
as well.
The case proceeded to trial before a jury on April 13, 1992.
B. J. Holcombe testified that Stockstill had called her a "bitch"
but had never sexually harassed her. Stockstill admitted that he
called Holcombe a "bitch" but would not agree that such conduct was
inappropriate. On April 14, at the conclusion of Stockstill's
case, the district court granted Shell's motion for judgment as a
matter of law. The court held that there was no evidence that the
statements made to the EEOC were made with malice or in bad faith.
Stockstill appeals the district court's judgment in favor of
Shell and the court's exclusion of evidence regarding Stockstill's
claim of age discrimination. Shell cross appeals the district
court's denial of its motion for summary judgment based on absolute
privilege. We affirm.
II.
Stockstill makes multiple arguments for reversal, all of which
lack merit. Initially, he contends the trial court erred when it
granted Shell's motion for judgment as a matter of law. We review
the district court's judgment as a matter of law de novo. In the
Matter of Worldwide Trucks, Inc., 948 F.2d 976, 979 (5th Cir.
1991). In so doing, we examine the entire record in the light most
favorable to the party opposing the motion, drawing all reasonable
inferences in favor of that party. Id. Before a judgment as a
4
matter of law (formerly a directed verdict) will be granted, "the
facts and inferences must point so strongly and overwhelmingly in
favor of the moving party that no reasonable jury could arrive at
a contrary conclusion." Id. But a "mere scintilla of evidence" is
not sufficient to present an issue for the jury. Id.
Stockstill says that after he presented his case-in-chief
"there was sufficient conflict in substantial evidence to create a
jury question" as to whether Shell acted with malice. Appellant's
Brief at 8. Stockstill is mistaken. Of the two areas of
"conflict" he identifies one is immaterial and the other presents
no conflict at all.
One "conflict" concerns the date of Stockstill's discharge.
Stockstill says that while the parties stipulated to a discharge
date of September 12, 1988, Shell executives testified that he was
discharged on October 3, 1988. Stockstill interprets this
discrepancy as an attempt by Shell to bolster its claim that its
action against him came after extensive investigation.
Stockstill's focus on the date of discharge and the thoroughness of
Shell's investigation is misplaced. What matters is whether
Ann Ford, who did not participate in the investigation of
Holcombe's sexual harassment charge, acted with malice or reckless
disregard for the truth when she relied on the Shell investigative
file in responding to the EEOC investigator's inquiries. The
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answer to that question is not affected by the three-week
discrepancy concerning Stockstill's date of discharge.
The other alleged evidentiary "conflict" that Stockstill
complains of relates to Shell's defense at trial. Stockstill
asserts that before trial Shell maintained it discharged Stockstill
because he engaged in inappropriate conduct of a sexual nature.
During trial Shell stated that the inappropriate conduct took the
form of inappropriate language. Based on his brief, it is
difficult to know why Stockstill finds Shell's positions
irreconcilable or, for that matter, why any of this matters. It
suffices to say that Shell's contentions before trial are not
inconsistent with its defense at trial. Inappropriate conduct of
a sexual nature does not necessarily imply that the conduct at
issue included physical contact. Conduct that is inappropriate and
of a sexual nature can just as easily take the form of verbal
abuse. That is what Shell maintains occurred in this case and the
record supports Shell on this point. In short, neither of the
evidentiary "conflicts" identified by Stockstill warrant reversal
of the district court's judgment as a matter of law in favor of
Shell.
Next, Stockstill asserts, without elaboration, that he did not
have to show falsity or malice at trial because Shell's statements
were defamatory per se. This argument rings hollow. Ford's
cautiously worded explanation for why Shell took action against
Stockstill does not amount to an explicit accusation that he
sexually harassed or discriminated against anyone. Cf. Rouly v.
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Enserch Corp., 835 F.2d 1127, 1129 (5th Cir. 1988) (remarks not
defamatory per se where defendant did not explicitly accuse
plaintiff of criminal activity). If the words "inappropriate
conduct of a sexual nature" are defamatory, their "intent and
meaning . . . must be gathered not only from the words singled out
as libelous, but from the context as well . . ." Madison v.
Bolton, 102 So.2d 433, 438 (La. 1958). By definition, therefore,
the statements at issue are not defamatory per se because a
defamatory per se statement must be defamatory on its face, without
reference to its context. Id.; see Rouly, 835 F.2d at 1129
(defamatory per se statements analyzed "without reference to their
context"). As noted below, Stockstill himself concedes that the
words spoken by Ann Ford to the EEOC investigator take on a
defamatory innuendo when considered in the context of the sexual
harassment investigation in which they were uttered.
Perhaps sensing the futility of his defamatory per se
argument, Stockstill argues alternatively that the allegedly
defamatory statements carry a defamatory innuendo for which the
truth of the statements is not a defense unless the innuendo is
likewise truthful. Stockstill reasons that the allegedly
defamatory statements, arising as they did in the investigation of
B. J. Holcombe's sexual harassment charge, carry the innuendo that
Stockstill was involved in the sexual harassment of Holcombe.
According to Stockstill, even if Shell was unaware of the falsity
of this innuendo, it was for the jury to decide whether Shell
7
exhibited a reckless disregard for the truth when it relied on one
employee's version of Stockstill's treatment of B. J. Holcombe.
This argument suffers from two fatal flaws. First, it wrongly
focuses on Shell's investigation rather than whether or not Ford
exhibited malice by relying on Shell's investigative file when
responding to EEOC inquiries. Second, Stockstill presented no
evidence that Shell acted recklessly in its investigation or that
Ann Ford recklessly relied on the investigative file. Stockstill
offered no evidence, for example, that Ford, or anyone at Shell,
knew that the alleged defamatory statements were false when they
were spoken to the EEOC.4 In fact, the record supports Ford's good
faith belief in the accuracy of the information contained in the
investigative file. Ford based her remarks to the EEOC on notes
taken during an interview of Skipper Berne, and Berne confirmed the
accuracy of the notes at trial. Nor did Stockstill offer evidence
that anyone at Shell acted recklessly in believing the information
supplied by Skipper Berne. Instead, Stockstill simply denied any
wrongdoing.
Shell correctly notes that even if the statements are
defamatory per se, the plaintiff must still prove malice when the
circumstances of a communication are such that the person who made
the statement is entitled to a qualified privilege. And Shell
4
Shell does not concede the falsity of the alleged
defamatory statements. On the contrary, Shell contends the
statements are true. Shell maintains that Stockstill's admission
at trial that he had routinely called B. J. Holcombe a "bitch" is
sufficient to show that he did in fact engage in inappropriate
conduct of a sexual nature.
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maintains that Ford's statements to the EEOC are entitled to such
a privilege. "Qualified privilege is an affirmative defense to
defamation provided by Louisiana law for one who can prove that he
made a statement (1) in good faith (2) on a matter in which he had
an interest or a duty (3) to another person with a 'corresponding
interest or duty.'" Rouly, 835 F.2d at 1130 (citations omitted).
Good faith or lack of malice "means that 'the person making the
statement must have reasonable grounds for believing that it is
true and he must honestly believe that it is a correct statement.'"
Id. (citations omitted). The plaintiff has the burden of proving
malice or lack of good faith. Id.
The statements at issue here are entitled to a qualified
privilege under Louisiana defamation law. The allegedly defamatory
statements made to the EEOC related to the charge of discrimination
that Stockstill filed against Shell. Both Shell and the EEOC had
an interest or duty regarding the charge. The EEOC is authorized
by law to investigate charges of discrimination against employers.
Shell had a corresponding duty to cooperate in the investigation
and an interest in defending itself against Stockstill's charge.
It was Ann Ford's job to coordinate Shell's response to charges,
such as Stockstill's, filed with the EEOC. And, as previously
noted, Stockstill offered no evidence that Ford, or anyone else at
Shell, had reason to believe the information supplied by Skipper
Berne was not true. On the contrary, the evidence shows that Ford
had reasonable grounds for believing that the information contained
9
in the investigative file was accurate. Thus, Stockstill has
failed to meet his burden of proving malice or lack of good faith.5
Lastly, Stockstill seeks reversal because the trial judge
excluded testimony concerning Stockstill's prior charge of age
discrimination against Shell. Stockstill cites no authority to
support this argument; he merely contends that the trial judge's
rulings on this issue were inconsistent. Shell's response to this
purported basis for reversal is equally brief, though more
persuasive. Shell notes that Stockstill made no offer of proof
that would allow this Court to determine if a substantial right had
been affected by the trial court's ruling, as required by
Rule 103(a)(2) of the Federal Rules of Evidence. Generally
speaking, "this circuit will not even consider the propriety of the
decision to exclude the evidence at issue, if no offer of proof was
made at trial." United States v. Winkle, 587 F.2d 705, 710 (5th
Cir.), cert. denied, 444 U.S. 827 (1979). While a formal proffer
is not essential, the proponent of the evidence "must show in some
fashion the substance of the proposed testimony." Id. There is no
indication in the record as to precisely what evidence Stockstill
5
We are expressly refusing to decide Shell's cross appeal,
in which Shell challenges the district court's denial of its motion
for summary judgment based on an absolute privilege under federal
law. The district court implicitly found, and we have expressly
held, that Ford's statements to the EEOC are qualifiedly privileged
under Louisiana law. Since the qualified privilege provides
sufficient protection for Shell, this Court need not inquire
whether Shell is entitled to greater protection. We express no
opinion about whether federal common law accords an absolute
privilege to statements made by employers to the EEOC in the course
of an EEOC investigation. Nor do we decide whether federal law
provides a qualified privilege different from or greater than the
privilege supplied by Louisiana law.
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wanted to present at trial. Therefore, we do not have an adequate
basis for reviewing the district court's ruling.
The judgment of the district court is AFFIRMED.
11