Opinion
Case No. 6:01-cv-229-Orl-DAB
July 9, 2002
ORDER
This cause came on for consideration with oral argument on the following motion filed herein:
MOTION: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 49)
FILED: March 1, 2002
THEREON it is ORDERED that the motion is GRANTED.
Defendants Boeing Company and McDonnell Douglas Corporation (collectively "Boeing") seek summary judgment on Plaintiffs' claims of wrongful termination and defamation per se Both Plaintiffs were terminated from their employment with Boeing following Boeing's investigation and determination that Branch possessed, and distributed to Erskine, proprietary marked documents from Branch's former employer, Lockheed Martin, during an Air Force competition, and for being untruthful during the investigation. Plaintiffs contend that factual issues preclude summary judgment for Boeing. The Court finds that summary judgment is appropriate.
Plaintiff Branch has withdrawn his claim against Boeing for age discrimination. See Doc. No. 75 at 19 n. 8.
I. STANDARD FOR SUMMARY JUDGMENT
A party is entitled to judgment as a matter of law when the party can show that there is no genuine issue as to any material fact. FED. R. Civ. PRO. 56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex, 477 U.S. at 323. In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255.
II. BACKGROUND FACTS
The following facts are either undisputed or read in the light most favorable to Plaintiffs:
Plaintiff Erskine was hired by Boeing's predecessor, McDonnell Douglas Corporation, an Engineer/Scientist in Huntington Beach, California in October 1986. Erskine Dep. at 26-27. In October 1988, Erskine transferred to the Cape Canaveral Air Force Station ("Cape Canaveral AFS") in Florida to work on the Delta II rocket program. Id. at 34-35, 38. During 1995, the United States Air Force announced a competition for developing and launching satellite delivery rockets, called Evolved Expendable Launch Vehicles ("EELV"). Schluter Aff. ¶ 3. The initial phase of the Air Force competition resulted in the award of Air Force contracts to Boeing, McDonnell Douglas, Lockheed Martin, and one other competitor. Id. In 1995, Erskine transferred to the McDonnell Douglas EELV program, Delta IV. Erskine Dep. at 57. Subsequent to October 1988, during the time Erskine was employed by Boeing/McDonnell Douglas, Erskine was employed on projects located at CCAFS and Titusville, Florida and was a Florida resident. Erskine Dep. at 34, 38, 40.45 (owned a home, registered a car, obtained a driver's license, and registered to vote in Florida since October 1988). Erskine applied for and received unemployment compensation in Florida after his termination. Id. at 390.
Boeing acquired its interest in McDonnell Douglas in August 1997. Schluter Aft. ¶ 4, Branch Dep. at 110. Events occurring prior to that time will refer to McDonnell Douglas as Plaintiffs' employer for the sake of clarity.
In August 1996, Plaintiff Branch, a then-Lockheed Martin employee, interviewed for a position with McDonnell Douglas in the Delta IV section, in the event a position became available. Branch Dep. at 146, 154. At the time of the interview, Branch had recently completed an assignment working on Lockheed Martin's EELV program. Id. at 100, 112. In late 1996, the Air Force narrowed the field of competitors to Lockheed Martin and McDonnell Douglas for the next phase of the EELV competition. Alexiou Aff. ¶ 4. Branch was offered the position of Senior Engineer/Scientist at Cape Canaveral AFS and he went to work for McDonnell Douglas in January 1997. Branch Dep. at 209-211; Alexiou Aff. ¶ 4. During the two years that Branch was employed by Boeing/McDonnell Douglas, he worked at a Florida location and was a Florida resident. Branch Dep. at 22-25, 707. Branch applied for and received unemployment compensation in Florida after his termination from Boeing. Id. at 706.
Both Plaintiffs, Erskine and Branch, had signed employment agreements upon their hiring that acknowledged their employment was at-will. Erskine Dep. at 26, Ex.2; Branch Dep. at 207-09; Ex. 12. After Boeing's acquisition of interest in McDonnell Douglas in August 1997, Branch and Erskine became subject to Boeing's policies and procedures. Schluter Aff. ¶ 4; Branch Dep. at 110. Boeing's Procedure PRO-70 precludes employees from obtaining and/or using a competitor's proprietary or competition sensitive information during a competition. Hartman Aff. ¶ 2, Ex. A. Employees who come into possession of a competitor's proprietary or competition information must notify management and/or the Law Department. Id. Boeing's Procedure PRO-1909 classifies untruthfulness in an investigation and the failure to protect information as offenses that may result in discipline, including termination. Id.; Ex. B.
On March 3, 1997 the Director of EELV Business Development, Frank Slazer, sent a memo to Larry Satchell, a manager in strategic planning and market analysis on the Delta missiles and rockets for Boeing, and others about developing "an improved Lockheed Martin EELV Competitive Assessment . . . as quickly as possible." Doc. No. 75 Ex. F.
Based, in part, upon a competitive assessment technique developed by our Rocketdyne teammates. . . I encourage you to seek out former Lockheed Martin and General Dynamics personnel to interview regarding their thoughts and impressions of Lockheed Martin's probable EELV approach. During this interview process, we must scrupulously follow the MDC "Always Take The High Road" ethical guidelines. In addition, all interviewees should be given the option to refuse to discuss an area of ethical uncertainty without adverse consequences. Employees should also be cautioned not to violate the terms and conditions of their prior employment relationship by disclosing any proprietary information, and under no circumstances should any proprietary documentation be utilized in your assessment activity.Id. At some point after Branch was hired, Satchell met with him when one of his analysts brought Branch by. Satchell Dep. at 54-55. "The meeting was bared, basically sit down and, you know, chitchat about how does Lockheed, you know, go and build their Atlas rockets and how do they get those big things from Denver to, you know Florida. . . . Now, that, to me, is not really sensitive data because everybody is always talking about who is leading what and at that time, Boeing was going through a whole series of reorganizations. . . . So I was just getting more of a general feeling on how serious is this effort at Lockheed and — and who is essentially leading this effort and questions like, `Is he a Lockheed Hotshot?'" Id. at 55.
Also within a short time after Branch was hired, in late 1997, a fellow employee, Kim Tran, reported to her supervisor, Rick Taylor, that she had seen Branch with some proprietary marked Lockheed Martin documents. Taylor Dep. 19-20, 30, 56; Alexiou at 61. Alexiou "got wind of that, " and talked to her about it. Tran Dep. at 12; Alexiou at 64. He told her to get her "administrative manager and functional lead and get to HR and report it." Alexiou at 62. Although Tran could not remember what Alexiou said to her, she did remember that he was upset. Tran Dep. at 12. In that general time frame, Alexiou went to Branch and asked him if he had anything considered Lockheed proprietary data. Alexiou at 64. Branch told Alexiou that everything was considered "public domain." Id Alexiou called Taylor into his office and told him that the matter had been looked into and that Branch did not have proprietary documents. Taylor Dep. at 30.
Plaintiffs do not dispute Alexiou's testimony with any contradictory evidence from Branch regarding the conversation. Moreover, although Plaintiffs characterize this incident as an "investigation, " it is undisputed that Branch was unaware of any such "investigation" until told of it by a coworker following his termination. According to Plaintiffs' evidence, after Branch's termination, he was discussing why he had been terminated with co-worker Taylor. Taylor Dep at 36. Taylor told Branch, "Well, that's kind of strange because you've been investigated for that once [before]." Id.
In June 1999, Steve Griffin, a Delta IV employee, informed Delta IV Human Resources Representative Lea Ann Potts and Delta IV Cape Canaveral AFS launch site manager Dave Herst that Erskine made statements to the effect that Erskine had hired Branch in exchange for Branch agreeing to give Erskine EELV-related Lockheed Martin proprietary information. Herst Aff. ¶ 7. Erskine admits that "on one possibly two occasions when asked why Ken Branch was hired my response was because he gave us information on our competition." Erskine Dep. at 279-80, Ex. 10; Rabe Aff. ¶ 8. Herst forwarded the information up his chain of command; Boeing's Law Department was notified of the allegations; and Boeing assigned in-house counsel Mark Rabe to conduct the investigation. Herst Aff. ¶ 7-8. Rabe interviewed Griffin and Erskine on June 18, 1999. Rabe Aff. ¶ 3.
According to Rabe, Erskine did not initially disclose in the interview that Branch had given him Lockheed Martin proprietary marked documents, which Erskine still had in his possession. Id ¶ 4-5. Erskine contacted Rabe later to inform him that he had EELV-related Lockheed Martin proprietary marked documents in his file cabinet (which Rabe bad already retrieved from Erskine's files). Id. ¶ 4-5. Rabe viewed this belated revelation as a lack of candidness. Id. Rabe also interviewed Branch, who contended that he had not shared any Lockheed Martin proprietary information at his job interview or with anyone at Boeing, other than "street knowledge" with Satchell. Rabe Dep. at ¶ 6. Rabe believed Branch was lying to him. Rabe Aff. ¶ 6.
After the interview, Rabe and Mike Woolley escorted Branch to his cubicle; Branch showed Rabe a five-to-six inch high stack of Lockheed Martin proprietary marked documents sitting on his desk. Branch Dep. at 574-76, 624-25, 651; Rabe Aff. ¶ 7. Branch was suspended with pay pending the completion of the investigation. Branch Dep. at 583. Rabe found approximately one box of additional Lockheed Martin marked documents in Branch's cubicle. Rabe Aff. ¶ 7.
On June 24, 1999, Rabe interviewed Erskine again. Rabe Aff. ¶ 9. Erskine identified the documents in the "Competition" file that Rabe had taken from Erskine's file cabinet; he admitted that Branch had given him a number of proprietary marked documents after Branch was hired. Erskine Dep. at 216, 219-20, 224, 259-60, 276-78; Ex. 9. Erskine stated that the had to "plead stupidity" for taking the documents from Branch; he recognized that the documents were marked "proprietary" and "competition sensitive" when he received them. Erskine Dep. at 324; 216, 219. Branch denied intentionally giving Erskine the Lockheed Martin proprietary marked documents found in Erskine's "Competition" file, although he acknowledged having them in his possession when he started at McDonnell Douglas. Branch Dep. at 383, 628, 906. Branch also maintained that he had many of the Lockheed Martin proprietary marked documents in his possession due to his role as a member of the Joint Sponsored Research Authority. Id. at 576. In addition to Erskine and Branch, Boeing also interviewed seventeen other employees involved in the EELV bid process and program during the investigation. Schurman Aff. ¶ 4.
In July 1999, a team of Boeing lawyers and managers met to discuss the findings of the investigation. Hartman Aff. ¶ 4. The team determined that (1) Branch had violated company policy by possessing and distributing to Erskine Lockheed Martin EELV-related proprietary documents during a competition and by being untruthful with Rabe; (2) Erskine had violated Boeing policy by receiving from Branch and maintaining in his possession those documents during a competition, and not being truthful with Rabe. Id. The team decided to recommend to Schluter (the ultimate decision-maker) the termination of Branch and Erskine. Id. ¶ 5; Schluter Aff. ¶ 8, 9.
Plaintiffs allege that they were terminated to cover up Boeing's policy of seeking out competition sensitive information. Boeing maintains that the team did not recommend, and Schluter did not terminate, Plaintiffs to cover-up alleged illegal activities in the EELV program. Id. at ¶ 9.
On August 2, 1999, Branch and Erskine were terminated in separate meetings. Branch Dep. 657, 667, Ex. 23; Erskine Dep. at 333; Herst Aff.¶ 12. Boeing informed the Air Force and Lockheed Martin that their employees had been found in possession of EELV-related Lockheed Martin marked documents. Schluter Aff. ¶ 11.
III. ANALYSIS
A. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
A central issue, extensively briefed by both parties, is whether Florida or California law applies. In a case such as this one, where a diversity action is transferred from the Central District of California to the Middle District of Florida, the Court must apply the choice of law principles on which the Central District of California would have relied. Acme Circus Operating Co., Inc. v. Kuperstock, 711 F.2d 1538, 1540 (11th Cir. 1983) (deciding choice of law in a case transferred from California federal court to Florida) (citing Van Dusen v. Barrack, 376 U.S. 612 (1964)). The Central District of California in a diversity action must apply the conflicts of law principles of the state in which it sits, i.e., California. Acme, 711 F.2d at 1540 (citing Klaxon Co. v. Stentor Electrical Manufacturing Co., 313 U.S. 487 (1941)). Thus California choice of law rules should be applied here. Acme, 711 F.2d at 1540. Plaintiffs contend that "the general rule" is that the laws of the transferor state — in this case California — apply in transferred cases; however, as the Eleventh Circuit has cautioned, application of one state's choice of law principles may often dictate application of the substantive law of another state. Id.
The first step in choice of law analysis is to ascertain the nature of the problem involved, in this case, employment law. See id. The second step is to determine what choice of law rule the state of California applies to that type of legal issue; and the third step is to apply the proper choice of law rule to the instant facts and thereby conclude which state's substantive law applies. Id. California utilizes a "governmental interest" approach to choice of law problems. Arno v. Club Med Inc., 22 F.3d 1464, 1467 (9th Cir. 1994) (citing Reich v. Purcell, 432 P.2d 727 (1967)). Under the "governmental interests" approach, the court must examine (1) whether the two states' laws actually differ, (2) what interest each state has in applying its law, and (3) what comparative impairment will result to each state as a result of the application of the other state's law. Id. If a conflict exists, the law applied is that of the state whose policies would "comparatively" suffer the most if its law were not applied. Id.
Florida law and California law differ with regard to employment termination. Florida does not recognize a general "public policy" exception to at-will employment. See Hartley v. Ocean Reef Club, Inc., 476 So.2d 1327. 1329 (Fla. 3d DCA 1985). California, on the other hand, recognizes that an employer's broad discretion to discharge an at-will employee may be limited by statute or considerations of public policy. See Green v. Ralee Engineering Company, 960 P.2d 1046, 1048 (Cal. 1998). If Florida law applies, Plaintiffs concede that they have no claim for wrongful termination. If California law applies, Plaintiffs may state a claim for the judicially created tort of wrongful termination in violation of fundamental public policy as an exception to at-will employment. Both California and Florida have significant interests in enforcing their employment laws. California has a significant interest in enforcing its wrongful termination laws and preventing California employers from violating duties imposed on them by California law. See Thomason v. Mitsubishi Elec. Sales America, Inc., 701 F. Supp. 1563, 1565-1567 (N.D. Ga. 1988) (rejecting plaintiff's argument that the Court should focus on employer's status as a California-based employer (for purposes of this action) based on his claims that illegal pricing scheme was conceived and orchestrated in California). California has an interest in ensuring that Boeing, a California employer, does not act in violation of state law. Florida on the other hand, has an interest in protecting its citizens from harm by a foreign corporation, as well as in regulating corporate conduct within its borders.
The case of Thomason v. Mitsubishi Electric Sales America, Inc., is directly on point. 701 F. Supp. 1563 (N.D.Ga. 1988). In Thomason, an Atlanta, Georgia sales manager resident sued his former employer — a corporation with headquarters in California — for wrongful termination. Id. at 1564. Georgia, like Florida, does not recognize an exception to at-will employment based on statutory or public policy considerations. Id. at 1565. The Georgia resident-plaintiff filed suit in California, alleging wrongful termination and other tort claims, and the California court transferred the case to Georgia district court. Id. at 1564. The Georgia court, applying California's choice of law rules, concluded that Georgia's interests would be comparatively more impaired than California's by failure to apply Georgia's laws:
[T]he Court finds that Georgia's interest would be most impaired by failure to impose its law. In so ruling, the Court does not suggest that California's interest in the conduct of resident employers is any less substantial than Georgia's interest in the treatment of resident employees. The Court bases its determination upon the fact that Georgia law governed Mitsubishi's conduct within the state. That authority necessarily resulted in application of Georgia law to all other aspects of Mitsubishi's relations with its employees. Failure to apply Georgia law concerning wrongful termination in this case, therefore, would produce an unprincipled exception to Georgia's ability to govern the affairs of foreign corporations operating within the state.Id. at 1567.
Plaintiffs contend that "all of the significant events pertaining to the litigation occurred in California, " including Branch's initial interview, his hiring, Satchell's solicitation of Branch's information, the alleged "first investigation" into the complaint by Tran, Rabe's interviews of some of the California employees, the ultimate decision by Schluter to terminate Plaintiffs, and the established base for Delta IV. As the transferring court has already concluded, Plaintiffs' terminations emanated from the Florida facility, were signed and witnessed by Florida staff, and pertained to an investigation conducted in Florida. Doc. No. 25 at 21. It is undisputed that both Plaintiffs are residents of Florida and worked at Florida locations in Titusville and on CCAFS. Rabe's interviews of Plaintiffs and investigation of documents were performed in Florida, and Plaintiffs' actual terminations were executed in Florida. Both Plaintiffs also sought unemployment compensation from the state of Florida after their terminations from Boeing. The Court agrees with the analysis of Thomason; failure to apply Florida's law concerning wrongful termination in this case would "produce an unprincipled exception to [the state's] ability to govern the affairs of foreign corporations operating within the state." See also Toy v. General Elec. Co., No. C95-20060 RPA, 1995 WL 396848, *4 (N.D. Cal. June 27, 1995) (holding Georgia law applied to wrongful termination claims of Georgia resident suing national employer in California even though employee's reports of alleged fraudulent billings involved California-based legal department).
Boeing contends that it is entitled to summary judgment because Plaintiffs were working on a federal enclave ceded to the federal government; thus, Plaintiffs may not bring any state wrongful termination claims based on laws enacted subsequent to the ceding. Plaintiffs did not respond to this argument in their Response brief (Doc. No. 79), and admitted at oral argument that they did not respond because they believed the issue was "not important." CCAFS is recognized as a federal enclave ceded to the federal government by the State of Florida in 1955. See International Union, United Plant Guard Workers of America v. Johnson Controls, 100 F.3d 903, 904 (11th Cir. 1996). CCAFS, being a federal enclave, has no state law as such, except to the extent that it incorporated, as its own, Florida law as it existed at the time Florida ceded the enclave to the United States. Id. Because the Plaintiffs do not dispute that they have no wrongful termination claim if Florida law applies, the Court need not reach the issue of whether the federal enclave would bar a claim under Florida law.
Even if the Court were to apply California law, Plaintiffs' wrongful termination claims would not survive summary judgment. California courts have recognized an exception to the employment-at-will principle for terminations in violation of public policy. See Green v. Ralee Engineering Co., 960 P.2d 1046, 1048 (Cal. 1998). Employees charged for refusing to engage in illegal conduct at their employer's request may bring a wrongful termination claim. Tameny v. Atlantic Richfield Co., 610 P.2d 1330, 1332 (Cal. 1980). However, alleged violations of internal practices that affect only the employer's or employee's interest and not the general public's interest, will not give rise to tort damages. Green, 960 P.2d at 1051. Not all statutes will support such a claim because many statutes "simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns." Id.
It is not enough for an employee to identify a "public policy" as to which his employer is subject. There must be some nexus between the termination of employment and the public policy at issue, so that it may fairly be concluded that the termination was itself in violation of a recognized public policy. Plaintiffs here completely fail to show any logical connection between the termination of their employment and any actual or attempted violation of federal procurement policy by Boeing. If, as Plaintiffs contend, their possession of Lockheed documents did not violate any regulations, Boeing's mistaken (or, as Plaintiffs argue, pretextual) basis for termination would accentuate rather than cover up any violations.
The line of California cases for wrongful termination in violation of public policy fall into one of four categories: the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for the public's benefit. Green, 960 P.2d at 1051. At oral argument, Plaintiffs' counsel conceded that Plaintiffs did not have any evidence that Boeing actually had obtained any competition sensitive information or documents, but argued that Boeing's alleged attempts to obtain competition sensitive information violated the Federal Procurement Act and the public policy underlying that Act. When the Court pressed Plaintiffs' counsel, she agreed that these facts did not fit into one of the four categories set forth in Green. Therefore, Green is distinguishable on that basis. Plaintiffs' counsel argued, however, that Plaintiffs were terminated as scapegoats by management to cover up managements' own illegal attempts to solicit competitive information and violate public policy. However, Plaintiffs also conceded that they "did not know" whether Boeing had any competition sensitive documents, but argued that they nevertheless stated a claim because Boeing had allegedly attempted to collect such information.
The California Supreme Court in Green warned against courts "judicially interfering with the legislative domain" by allowing employees to assert vague claims of "public policy" violations. id. at 1049. Plaintiffs have identified several sections of the Federal Procurement Act and its regulations. Plaintiffs allege that Boeing violated federal procurement laws by seeking out competitive information and by having specific policies to collect such information. Plaintiffs point specifically to subsections of the Federal Procurement Act, 41 U.S.C. § 423 (a) and (b), which prohibit obtaining and/or disclosing procurement information before the award of the contract. Plaintiffs also point to certain federal regulations which prohibit disclosing bid information, require such information be protected, and prohibit any actions which would give one competitor an advantage in the award of a contract. 48 C.F.R. § 3.103-3; 3.104-4; 3.104-7. Employees who disclose violations of the procurement regulations (cited by Plaintiffs) to a Member of Congress, an agency official or the Department of Justice, may not be discharged, demoted, or otherwise discriminated against. 48 C.F.R. § 3.903.
(b) A person shall not . . . knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. 41 U.S.C. § 423(b).
Plaintiffs do not discuss the underlying public policy for the statutes and regulations they cite other than to simply argue that "[c]learly, there is fundamental public policy as expressed by the legislative enactments pertaining to procurement laws." Doc. No. 75 at 17. Even assuming that the California courts would recognize all aspects of the federal procurement regulations as embodying fundamental public policy that should provide employees with a measure of protection beyond the express whistle blower provisions found in those regulations, Plaintiffs have not shown that they are entitled to such protection. They do not contend that they were terminated for refusing to commit or trying to stop a procurement violation nor that they were retaliated against for reporting any violations. There is no sense in which their terminations implicated or interfered with any policy of public procurement integrity.
Based on the statutes and regulations cited by Plaintiffs, the Court does not find that the public policy that Plaintiff alleges Boeing violated — seeking out or attempting to obtain competitive information — is on the order of the policy cited in Green, airline safety, which the California Supreme Court described as "`rank[ing] somewhere in pecking order between motherhood and the American flag.'" Green, 960 P.2d at 1053 (quoting Anderson v. Evergreen Intern. Airlines. Inc., 886 P.2d 1068, 1073 (Ore. 1994)). Plaintiffs have cited no case (and the court has not found one) which holds that integrity or fairness in procurement competitions, albeit an important policy for cost and quality control in federal contracts, ranks alongside airline passenger safety or the public interest in avoiding multiple casualties in an airline catastrophe.
Plaintiffs also rely heavily on Cotran v. Rollins Hudig Hall, 948 P.2d 412 (Cal. 1998), which is readily distinguishable. The plaintiff in Cotran was hired under an agreement that the California Supreme Court determined required "good cause" for her dismissal. Id. at 414. Concededly, Plaintiffs in this case are at-will employees, for whom no "good cause" was required for Boeing's decision to terminate. The Court does not find persuasive Plaintiffs' argument that Cotran stands for the broader principle that the employer's investigation must be in good faith for all employees, including at-will employees. If employees may be terminated at-will for any reason, then no investigation need be undertaken to determine whether the reason for termination is valid. The Court finds that summary judgment is due to be granted on Plaintiffs' claims for wrongful termination in violation of public policy.
B. DEFAMATION PER SE
The Court need not decide which state's defamation laws apply unless there is a conflict. See Jean v. Dugan, 20 F.3d 255, 260 (7th Cir. 1994) (holding that before "entangling itself in messy issues of conflict of laws a court ought to satisfy itself that there actually is a difference between the relevant laws of the different states" in deciding choice of law between Indiana and Illinois law. Under California law, defamation per se is "a false and unprivileged publication, orally uttered" which "charges any person with crime" or "tends directly to injure him in respect to his office, profession, trade or business." Simon v. Shearson Leaman Bros., Inc., 895 F.2d 1304, 1311 (11th Cir. 1990) (applying Cal. Civ. Code § 46). Similarly, under Florida law, false publications that impute to another characteristics or conditions incompatible with the proper exercise of one's business, trade, profession or office are defamation per se. Joopanenko v. Gavagan, 67 So.2d 434, 435 (Fla. 1953); Glynn v. City of Kissimmee, 383 So.2d 774, 775 (Fla. 5th DCA 1980).
Plaintiffs allege that Boeing made two statements which were defamatory per se: (1) statements to Lockheed and the Air Force that certain employees were terminated who were found in possession of proprietary documents; (2) statements made at an "all hands" meeting to discuss the terminations were defamatory. At oral argument, Plaintiffs' counsel conceded that the allegations regarding the "all hands" meeting did not create a triable issue of material fact. The remaining issue then is whether there is a genuine issue of material fact concerning the defamatory nature of the statements to Lockheed and the Air Force. Plaintiffs contend that "the references to Plaintiffs as violators of ethical rules pertaining to procurement . . . is akin to accusation of criminal conduct as well as conduct affecting one's profession, " which states a claim for defamation per se.
Truth is an absolute defense to defamation in both California and Florida (with the exception in Florida if the true statement was published with ill will, no evidence of which was presented by Plaintiffs in this case). Finch v. City of Vernon, 877 F.2d 1497, 1504 (11th Cir. 1989); Gill v. Hughes, 278 Cal.Rptr. 306, 311 (Cal.App. 1991). In addition, California recognizes a qualified privilege for communications made without malice to interested persons. See Cal. Civ. Code § 47(c). Florida also recognizes a privilege for statements made regarding a former employee's performance and for statements made in business matters when both parties have a corresponding interest in the matter. John Hancock Mutual Life Ins. Co. v. Zalay, 581 So.2d 178, 179 (Fla. 2d DCA 1991). Boeing does not dispute that it informed the Air Force and Lockheed Martin that its employees had been found in possession of EELV-related Lockheed Martin marked documents. See Schluter Aff. ¶ 11. However, Boeing contends that their actual communications with Lockheed Martin and the Air Force about finding their employees in possession of Lockheed Martin competition sensitive documents were (1) the truth and (2) privileged because both entities had a vested interest in being alerted to Erskine and Branch's possession of competition sensitive documents.
Plaintiffs fail to cite to any specific evidence to establish the content of the allegedly defamatory communication or to discuss any case to contradict Boeing's position that the communications to Lockheed and the Air Force were true or privileged. Tellingly, the portion of Plaintiffs' brief devoted to opposing summary judgment on the defamation claim is two paragraphs. Without evidence showing that any statements made were defamatory, the Court agrees that Boeing is entitled to summary judgment on Plaintiffs' defamation per se claims. Plaintiffs have not shown that Boeing's account of the announcement to the Air Force was not accurate. It is also clear that Boeing. as a party to ongoing negotiations and contracts regarding EELV, was privileged to make statements to the Air Force regarding the subject matter of that relationship.
CONCLUSION
Defendants are entitled to summary judgment on all of Plaintiffs claims. The Clerk is directed to enter judgment in favor of Defendants, to terminate all pending motions (except Doc. Nos. 77 and 79) as moot and to CLOSE this case.