97-0204 La.App. 4 Cir. 12/1/97, Motton v. Lockheed Martin Corp.

• Decision Date: 01 December 1997
• Parties: 97-0204 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 202

703 So.2d 202

97-0204 La.App. 4 Cir. 12/1/97

Agnes MOTTON v. LOCKHEED MARTIN CORPORATION, Jim Gibson, and Danny Bryant.

No. 97-CA-0204.

Court of Appeal of Louisiana Fourth Circuit.

Dec. 1, 1997.

Clement P. Donelon, Metairie, for Plaintiff.

Barbara Ryniker Evans, Anne E. Bendernagel, Evans & Associates, New Orleans, for Defendants.

Before ARMSTRONG, LANDRIEU and MURRAY, JJ.

[97-0204 La.App. 4 Cir. 1] LANDRIEU, Judge.

On March 11, 1996, Agnes Motton commenced an action against the Lockheed Martin Corporation (Lockheed) alleging sexual discrimination under the Louisiana Fair Employment Practices Act ¹ and the Louisiana Human Rights Act. ² Motton also asserted a defamation claim against Danny Bryant and Jim Gibson, both Lockheed employees, for allegedly "falsely and maliciously reporting" to other Lockheed employees that she had not answered questions correctly during her interview for a promotion. After unsuccessfully attempting to remove the case to federal court, Lockheed, Bryant, and Gibson (hereafter, the defendants) filed motions for summary judgment in the civil district court as to the discrimination claim and the defamation claim.

On October 30, 1996, the district court, without written reasons, denied the defendants' motion as to the discrimination claim, but it granted the motion for summary judgment on the defamation claim and dismissed Bryant and Gibson with prejudice. Only Motton moved for an appeal. On November 27, 1996, while [97-0204 La.App. 4 Cir. 2] Lockheed again unsuccessfully sought removal to the federal court, the district court granted Motton's motion to appeal. On March 19, 1997, we denied the defendants' motion to dismiss Motton's appeal, finding no merit to their contention that the state court had lacked jurisdiction at the time the motion for appeal was signed. The district court's grant of summary judgment on the defamation claim is the only issue before us.

Motton began working for Lockheed in March of 1979. She worked as a Systems Test Mechanic, Labor Grade 1(STM), from 1981 until 1986, when, because of cutbacks, her position was downgraded to Mechanic Installation & Test, Labor Grade 4. In February of 1995, she applied for the position of System Control Mechanic A, Labor Grade 1 (SCMA). Lockheed employees Gibson and Bryant interviewed Motton on February 13, 1995; Motton was informed on March 2, 1995, that she had not been hired for the position. Motton stated that Cheryl Alexander, a human resources manager for Lockheed's Staffing group, gave her a copy of the Disposition Action Form signed by Gibson and Bryant. This form, dated February 13, 1995, stated:

Employee has associates degree in electronics, has no computer hardware, PLC or pneumatics experience. Unable to answer most technical questions that were asked. Would require extensive training. Does not meet requirements for SCMA at this time. Good verbal communication skills, has computer user skills and training. Positive attitude, persuing [sic] theology degree.

In her suit, Motton asserted that Gibson and Bryant had "defamed her by falsely and maliciously reporting that she had not answered questions correctly during her interview." She further asserted that she had suffered damages "as a result of [Gibson's and Bryant's] intentional and malicious defamation of her regarding her job qualifications and regarding her performance during the interview to [Lockheed]."

[97-0204 La.App. 4 Cir. 3] The defendants asserted in their motion for summary judgment that Motton could not establish a prima facie case of defamation. First, they asserted that the element of publication had not been established. They alleged that there was no genuine issue of material fact that the communication was made internally by Gibson and Bryant to the Staffing group in order to report the results of Motton's interview. Therefore, they argued, the communication had not been published outside the company. Second, the defendants asserted that the communication made by Gibson and Bryant was subject to a qualified privilege, because it was made in good faith, to others at the company in the Staffing group, and pursuant to their duty. Third, the defendants asserted there was no genuine issue of material fact, given Motton's admissions in her deposition, that Gibson and Bryant had not made false or malicious statements concerning the interview. They argued that Gibson and Bryant made truthful comments without malice about Motton's interview and qualifications.

In her brief before this Court, Motton notes that the defendants did not provide affidavits from either Gibson or Bryant and claims, therefore, that the absence of affidavits contesting her version of the facts raises a presumption that her affidavit is accurate. Primarily, she argues that the following statement from her affidavit dated October 17, 1996, should stand:

She stated that after her interview Gibson and Bryant told her that she had done well, but later they falsely and maliciously reported that she was unable to answer most of the technical questions asked during the interview.

She also asserts that Gibson's and Bryant's report was defamatory, caused injury, constituted a publication, and was not a privileged communication.

In their brief, the defendants counter that Motton's affidavit contains self-serving and conclusory statements. They also contend the absence of affidavits [97-0204 La.App. 4 Cir. 4] from Gibson and Bryant does not raise a presumption in Motton's favor and points out that the cases upon which Motton relies are inapplicable.

As to the district court's grant of summary judgment on the defamation claim, we affirm.

Summary judgments are now favored, and the rules regarding such judgments should be liberally applied. E.g., Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. Appellate courts review summary judgments de novo. A motion for summary judgment which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.Code Civ. Proc. art. 966 C(1). An issue is genuine if reasonable persons could disagree. Smith v. Our Lady of the Lake Hospital, 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If, on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Walker v. Kroop, 96-0618, p. 2 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 583.

Paragraph C(2) of Article 966, added by Acts 1997, No. 483, § 1, sets forth the burden of proof in a motion for summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

[97-0204 La.App. 4 Cir. 5] As discussed more fully below, this paragraph clarifies the burden of proof in a summary judgment proceeding.

To maintain an action in defamation, the plaintiff must prove the following elements: (1) defamatory words, (2) publication, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. E.g., Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La.1988).

Pretermitting discussion of the defendants' alternative grounds for summary judgment, we find that they have established under La.Code Civ. Proc. art. 966 C that summary judgment is proper on the elements of falsity and malice. As set forth above, Article 966 C permits the defendants as the moving parties to point out that there is an absence of factual support for one or more elements essential to the plaintiff's action. Thereafter, if the plaintiff fails to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Proc. art. 966 C(2).

Until recently, neither the Code of Civil Procedure nor the jurisprudence of this Circuit specified what must be shown by the mover to sustain his initial burden of proof under Article 966 C. However, the 1996 amendment to Article 966 C closely followed federal jurisprudence interpreting Rule 56 of the Federal Rules of Civil Procedure, in particular Celotex Corp. v. Catrett, 477 U.S. 317, [97-0204 La.App. 4 Cir. 6] 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). ³ The 1997 amendment also follows this federal jurisprudence.

In Celotex, the plaintiff filed a wrongful death complaint alleging that the decedent was exposed to Celotex asbestos products. Celotex moved for summary judgment alleging that the plaintiff had failed to identify in discovery any evidence of exposure to its products. In response, the plaintiff produced three documents, the decedent's deposition and two letters concerning the decedent's exposure to asbestos. The district court granted summary judgment. The Court of Appeals reversed, holding that Celotex's failure to negate such exposure in the form of affidavits or other documentary evidence precluded summary judgment. The Supreme Court granted certiorari, reversed on the basis that Celotex did not have to disprove the plaintiff's case, and remanded to the appellate court to determine the adequacy of the plaintiff's response.

In explaining the showing required to secure summary judgment, the Supreme Court stated:

In our...