Cockram v. Genesco, Inc.

• Decision Date: 08 June 2012
• Docket Number: No. 11–2027.,11–2027.
• Citation: 680 F.3d 1046,33 IER Cases 1715
• Parties: Jessica COCKRAM, Appellant, v. GENESCO, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

680 F.3d 1046

33 IER Cases 1715

Jessica COCKRAM, Appellant,

v.GENESCO, INC., Appellee.

No. 11–2027.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 17, 2011.

Filed: June 8, 2012.

Daniel G. Curry, Randles Mata & Brown, LLC, Kansas City, MO, argued (Luis O. Mata, on the brief), for appellant.

W. Perry Brandt, Bryan Cave LLP, Kansas City, MO, argued (Emma L. Dill, on the brief), for appellee.

Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jessica Cockram sued her former employer, Genesco, Inc., after the company made public statements about Cockram's involvement in an incident in which a pernicious racial slur appeared on a return receipt that Cockram handed to a customer. The district court dismissed Cockram's claim for false light invasion of privacy and granted summary judgment in favor of Genesco on her defamation claim. Cockram now appeals, and we affirm the dismissal of the false light claim and reverse and remand the defamation claim.

I. BACKGROUND¹

On October 17, 2008, in the course of her duties at a Journeys retail store owned by Genesco, Cockram assisted Keith Slater, an African–American, with a merchandise return. For efficiency in processing the return, Cockram entered a generic phone number, (913) 555–5555, into the store register. Unbeknownst to Cockram, Richard Hamill, a former employee whom Journeys had fired prior to this incident, had inserted into a store-level database a racial slur as one of the names associated with the phone number Cockram entered. Cockram unwittingly selected the entry with the racial slur from the list of names associated with the phone number. She then printed a return receipt that included the racial slur, signed it without reading it, and handed it to Slater.

The next day, Slater, accompanied by members of his family, returned to Journeys with the return receipt. Slater's sister demanded Cockram's name, and Cockram complied. Slater and his family were outraged about the incident and told people in and near Journeys about what had happened, resulting in what Cockram described as a “riot.”

On October 20, Genesco fired Cockram. In response to inquiries about the incident, Genesco provided a statement (“first statement”) on October 21, 2008, reading:

While we are continuing to investigate this incident, it now appears that an employee in one of our stores entered highly inappropriate statements in a form used to process a merchandise return.Needless to say, such an act was not authorized by Journeys, and will not be tolerated. This employee has been terminated.

At Journeys, we pride ourselves on valuing and respecting every customer. We are shocked and sickened that a former associate could be responsible for an act so out of keeping with our culture and our values. We profoundly regret this incident.

Multiple news stories regarding the incident quoted the first statement, and some people posting comments to the online versions of those stories labeled as racist the involved employee. Additionally, after Genesco released the statement, Cockram received numerous messages and calls from people who called her a racist, blamed her for the racial slur, and threatened her. These accusations and threats made Cockram fearful, and she moved out of her apartment and temporarily placed her young child with her parents.

On October 22, 2008, Genesco learned that a different former employee, later identified as Hamill, may have been involved with the return-receipt incident. Genesco determined that the substance of the first statement was valid, but it also issued the following clarifying statement (“clarification”):

The inappropriate references were entered by employees in the Overland Park store in a store-level customer database. No preprogrammed transaction codes were involved.

We are currently working to develop mechanisms that allow us to monitor the store-level customer databases more closely than has been possible in the past, in an effort to ensure that nothing like this ever happens again.

Cockram sued Genesco for defamation and false light invasion of privacy based on the content of the first statement and the clarification. The district court granted Genesco's motion to dismiss Cockram's false light claim because it concluded that under Missouri law “there is no cause of action for false light invasion of privacy when recovery is sought for alleged defamatory statements” and that Cockram's false light claim was “based solely on what she explicitly pleads were defamatory comments.” Cockram v. Genesco, Inc., No. 09–01007–CV–W–JTM, 2010 WL 2349064, at *1–2 (W.D.Mo. June 8, 2010) (emphasis omitted). As to the defamation claim, the district court granted summary judgment in favor of Genesco because it determined that Genesco's statements were substantially true. Cockram now appeals both rulings.

II. DISCUSSION

Our jurisdiction in this case is based on diversity of citizenship, and the parties agree that Missouri law governs. See Kaufmann v. Siemens Med. Solutions USA, Inc., 638 F.3d 840, 843 (8th Cir.2011). We must apply Missouri law as declared by the Supreme Court of Missouri. Council Tower Ass'n v. Axis Specialty Ins. Co., 630 F.3d 725, 728 (8th Cir.2011). “If the Supreme Court of Missouri has not addressed an issue, we must predict how the court would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri law.” Eubank v. Kan. City Power & Light Co., 626 F.3d 424, 427 (8th Cir.2010).

A. Defamation

In a defamation action, a plaintiff must establish: “1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff's reputation.” Missouri ex rel. BP Prods. N. Am. Inc. v. Ross, 163 S.W.3d 922, 929 (Mo.2005)(quoting Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo.2000)). In seeking summary judgment, Genesco argued that Cockram could not establish that the statements were false, that Genesco published them with the requisite degree of fault, and that Cockram's reputation was damaged. The district court addressed only whether the statements were false and determined that they were not. On appeal, Genesco reasserts its arguments that Cockram cannot establish the latter three of the six required elements. See Shelton v. Kennedy Funding, Inc., 622 F.3d 943, 952 (8th Cir.2010) (“We may affirm the district court on any ground finding support in the record.”). We now consider the arguments relating to these three elements.

“We review a district court's grant of summary judgment de novo, including its interpretation of state law.” Raines v. Safeco Ins. Co. of Am., 637 F.3d 872, 875 (8th Cir.2011). The district court properly granted summary judgment to Genesco if, when viewing the evidence in the light most favorable to Cockram, there is “no genuine issue of material fact” and Genesco “is entitled to judgment as a matter of law.” Clark v. Matthews Int'l Corp., 639 F.3d 391, 397 (8th Cir.2011) (quoting Schultz v. Windstream Commc'ns, Inc., 600 F.3d 948, 951 (8th Cir.2010)). “A genuine issue of material fact exists if a reasonable jury could return a verdict for” Cockram. See id. (quoting Humphries v. Pulaski Cnty. Special Sch. Dist., 580 F.3d 688, 692 (8th Cir.2009)).

1. Falsity of the Statements

We must determine whether the “gist” or “sting” of the statements was false. See Turnbull v. Herald Co., 459 S.W.2d 516, 519 (Mo.Ct.App.1970). Under Missouri law, a statement is not considered “false” for purposes of defamation simply because it contains an erroneous fact. Thurston v. Ballinger, 884 S.W.2d 22, 26 (Mo.Ct.App.1994) (“A person is not bound to exact accuracy in his statements about another, if the statements are essentially true.”). Rather, if a statement is essentially true, such that its divergence from the truth “would have no different effect on the reader's mind than that produced by the literal truth,” the statement is not actionable in defamation. See id. (quoting Turnbull, 459 S.W.2d at 519).

As a preliminary matter, we note that counsel for Genesco conceded at oral argument that the first statement could be read as referring to Cockram and that Genesco knew prior to issuing the first statement that Cockram's name had appeared in news reports. Moreover, Roger Sisson, an officer at Genesco, agreed during his deposition that the words “[t]his employee has been terminated” in the first statement referred to Cockram. Thus, there is no real dispute that the reference to an “employee” in the first statement could be interpreted as referring to Cockram.

Genesco argues that the first statement was truthful as a matter of law because (1) Cockram did enter a racial slur into a form by selecting it from a list of names, and (2) her action was not authorized because she used a generic phone number, rather than entering Slater's actual information into the register as required by Genesco policy. We are not persuaded. When the entirety of the first statement is considered in the light most favorable to Cockram, it can be read as asserting that Cockram intentionally directed a racial slur at Slater, not just that she violated company policy requiring the entry of a customer's actual phone number to generate a return receipt. In other words, the first statement did not necessarily assert that Cockram was terminated merely because she violated company policy by entering a generic phone number into the register and generating a return receipt containing a racial slur without being conscious of the offensive output. It is not “[n]eedless to say” that Genesco would not authorize entering a generic phone number and blindly selecting a name entry in order to expedite a customer's return. And a reasonable jury may not consider such a practice by itself to be so out of line with Genesco's culture and values as to make Genesco “shocked and sickened.” Instead,...