Opinion
CA 3:03-CV-309-R
December 4, 2003
MEMORANDUM OPINION AND ORDER
Defendant Watson Wyatt Company ("Watson Wyatt") has moved for summary judgment on Plaintiff Alan Kyle Bozeman's ("Bozeman") defamation claims alleging that several Watson Wyatt employees made libelous and slanderous statements about him during performance reviews. For the reasons provided below, the Court will GRANT Watson Wyatt's motion as to all claims.
I. BACKGROUND FACTS
Since October 1997, Bozeman worked for Watson Wyatt's retirement practice section as a systems analyst. Due to a restructuring of its pension administration systems practice five years later, Watson Wyatt placed Bozeman's section under its Dallas Technology Solutions practice headed by Patty Hagan Poulos. Around January 2002, Bozeman, under Hagan Poulos' administrative oversight, worked on a pension benefit project in Minnesota with fellow employees Jeff Commander, Balaji Sukhumaran, and Barb Maki.
On April 18, 2002, Laura Peters, the project's supervisor, emailed Hagan Poulos in response to her request for feedback on Bozeman's work performance on the project. Bozeman "has a hard time prioritizing tasks," "doesn't stop to get clarification," and "puts in excessive hours," wrote Peters. Def.['s] Mot. for Summ. J. J.A. at 59, 64. In a similarly purposed email from Barb Maki to Peters, dated April 19, 2002, Maki wrote that she "expected that [Bozeman] would preview the forms and review them against the spec to make sure that the correct data was displaying for the field tag for each form." Id. at 51, 58. Maki further explained that Bozeman "was my point person and should [sic] previewed the forms to make sure they were corrected before stating that they were ready for testing." Id.
To discuss the concerns over Bozeman's job performance, Hagan Poulos and Dan Wu-another of Bozeman's supervisors-met with Bozeman on April 26, 2002. They informed Bozeman of the complaints and concerns expressed to them by his supervisors and colleagues and provided him with copies of the Peters and Maki emails. Allegedly, Hagan Poulos and Wu told Bozeman that his work was "embarrassing," of "horrible quality," and "one of the worst projects they had ever seen." Id. at 4, 5. Additionally, they allegedly told Bozeman that "there was something wrong with him" and that he was a "failure" on his current and previous project assignments. Def.['s] Mot. for Summ. J. J.A. at 4, 5, 9, 14.
Shortly after the meeting, Wu telephoned Bozeman to further discuss and clarify several specific assessments of Bozeman's work quality mentioned during the meeting. During this conversation, Wu allegedly asked Bozeman why he was "taking so long" on a particular project. Id. at 4, 7, 13. "[A]nyone else could do this work but you," Wu allegedly added. Id. at 15.
Ultimately, on May 3, 2002, Watson Wyatt terminated Bozeman. He, in turn, filed suit in the 191st District Court of Dallas County, Texas on January 14, 2003, which Watson Wyatt, on February 12, 2003, subsequently removed to this Court. Bozeman argues that Watson Wyatt's employees and management defamed him by these allegedly libelous and slanderous remarks about his job performance.
II. ANALYSIS
A. Summary Judgment Standard
FEDERAL RULE OF CIVIL PROCEDURE 56(c) allows summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). The court must decide all reasonable doubts and inferences in the light most favorable to the party opposing the motion. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Lynch Properties, Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See Celotex, 477 U.S. at 325. Once the moving party has satisfied this burden, the non-moving party must go beyond the pleadings and by its own affidavits or depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431-32 (5th Cir. 1998). Summary judgment will be granted "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 at trial." Celotex, 477 U.S. at 322.
B. Defamation
Slander and libel constitute the two forms of defamation. See AccuBanc Mortgage Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex.App.-Fort Worth 1996, writ denied). The former, slander, is a false oral statement about an ascertainable person that is published to a third person without a legal excuse, while the latter, libel is defamation expressed in written form. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); Rogers v. Dallas Morning News, 889 S.W.2d 467, 472 (Tex.App.-Dallas 1994, writ denied). Regardless of its form, a statement is only defamatory if its words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. See Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.-Houston [1st Dist] 1992, writ dism'd w.o.j.). Moreover, the statement must be "published," that is, communicated orally, in writing, or in print to some third person capable of understanding its defamatory import and in a manner the third person understands. See Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex.App.-Dallas 1986, no writ).
C. April 26, 2002 Meeting Statements
Bozeman argues that Watson Wyatt defamed him by the statements Hagan Poulos and Wu made to him during the April 26, 2002 meeting. Watson Wyatt contends that those statements were not published and thus not actionable under Texas defamation law. The Court agrees.
Publication is an essential element of a defamation action, without which there is no defamation. See Houston Belt Terminal Ry. Co. v. Wherry, 548 S.W.2d 743, 751 (Tex.Civ.App.-Houston [1st Div.] 1976, writ ref'd n.r.e.), appeal dism'd, 434 U.S. 962. Importantly, the publication must be to someone other than the person allegedly defamed. See Menella v. Kurt E. Schon E.A.I., Ltd, 979 F.2d 357, 365 (5th Cir. 1992). Neither party disputes that Bozeman, Hagan Poulos, and Wu were the only participants of the meeting. However, Bozeman has produced no evidence that Hagan Poulos and Wu repeated their statements to a third party. He merely speculates that they must have made the remarks to a co-worker of Bozeman's who told him immediately after the meeting that he should clear his name. Without more, Bozeman has failed to raise a genuine issue of material fact that the statements were published, and thus, summary judgment is proper as to this claim.
Since Bozeman has failed to carry his burden of establishing a genuine issue of material fact that a prima facie case of defamation exists as to the meeting statements, the Court need not address Watson Wyatt's defense of qualified privilege.
D. Telephone Conversation Statements
Similarly, Bozeman argues that Dan Wu defamed him during their telephone conversation following the April 26, 2002 meeting. Watson Wyatt maintains that, like the meeting statements, these statements were not published and therefore not actionable. Again, the Court agrees. Bozeman does not argue or provide evidence establishing that Wu repeated his statements to a third party. Thus, he has not raised a genuine issue of material fact that he was defamed, and the Court will grant summary judgment as to this claim.
Again, in light of its ruling, the Court need not address Watson Wyatt's argument that the statements were incapable of defamatory meaning or its defense of qualified privilege.
E. April 2002 Emails
Bozeman next argues that he was defamed in both of the April 2002 emails addressing his work performance. His project manager, Laura Peters, authored the April 18, 2002 email and sent it to Patty Hagan Poulos, Dan Wu, and Jeff Commander. Barb Maki, a co-worker of Bozeman's on the project, authored the April 19, 2002 email and sent it to Laura Peters, Dan Wu, and Patty Hagan Poulos. Watson Wyatt argues that both emails are protected by qualified privilege and are accordingly not actionable.
Qualified privilege protects an employer's comments or accusations about an employee made in good faith to a person having an interest or duty in the matter to which the communication relates. See ContiCommodity Servs., Inc. v. Ragan, 63 F.3d 438, 442 (5th Cir. 1995). However, the statements lose the protection if they were made with malice. See Free v. American Home Assur. Co., 902 S.W.2d 51, 55 (Tex.App.-Houston [1st Dist] 1995, no writ). If the speaker knew the statements were false or made them with a reckless disregard for the truth, the statements, as a matter of law, are malicious. See Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989). Since Watson Wyatt is moving for summary judgment, it has the burden of proving the absence of malice. See Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 199 (Tex.App.-Texarkana 1993, no writ).
As Bozeman's supervisors and co-workers on the project, Peters, Hagan Poulos, Wu, Commander, and Maki had an interest in Bozeman's performance. Furthermore, because their comments served merely as an evaluation of Bozeman's performance, the communications are privileged. To hold otherwise would undermine the central policy of the privilege, which "recognizes the need for free communication of information to protect business and personal interests." Gaines v. CUNA Mut. Ins. Soc'y, 681 F.2d 982, 986 (5th Cir. 1982). Thus, Watson Wyatt has satisfied its burden of establishing that the statements were privileged.
Additionally, by providing Peters' and Maki's affidavits (Def.['s] Mot. for Summ. J. J.A. at 62-63, 66-67) disavowing any malice behind their comments, Watson Wyatt has satisfied its burden of establishing the absence of malice. The Texas Supreme Court, in Casso v. Brand, held that a defendant's own affidavit averring the absence of malice can be sufficient to require the plaintiff to establish malice by independent evidence. 776 S.W.2d 551, 559 (Tex. 1989). In Casso, the court found summary judgment proper on Brand's defamation claims after Casso presented his own affidavit, uncontroverted by Brand, establishing that he did not believe the statements he made about Brand were false and did not act with reckless disregard for the truth in repeating them. Id. Here, as in Casso, Bozeman has not presented evidence establishing a genuine issue of material fact that the emails were written with malice. Instead, he merely alleges they were. While Watson Wyatt's burden to show the absence of malice is a heavy one, Bozeman must do more than simply allege malice, for such speculation is insufficient to overcome a defamation defendant's motion for summary judgment. See Bozé v. Branstetter, 912 F.2d 801, 807 (5th Cir. 1990). Therefore, the Courts finds summary judgment proper on Bozeman's defamation claims arising from the April 2002 emails.
F. Other Email Correspondence
Lastly, Bozeman argues that Watson Wyatt defamed him in another email circulated by Peters that allegedly inquired why a certain aspect of the project Bozeman was working on was "taking so long." Def.['s] Mot. for Summ. J. J.A. at 4, 7. However, aside from speculation, he has not presented evidence establishing that the email actually existed. Therefore, as a matter of law, Bozeman's defamation claim fails because he has failed to identify a defamatory statement.
III. CONCLUSION
For the foregoing reasons, Watson Wyatt's Motion for Summary Judgment is GRANTED as to all claims.