Garziano v. E.I. Du Pont De Nemours & Co.

• Decision Date: 03 June 1987
• Docket Number: No. 86-4025,86-4025
• Parties: 43 Fair Empl.Prac.Cas. 1790, 43 Empl. Prac. Dec. P 37,171, 2 Indiv.Empl.Rts.Cas. 272 Richard GARZIANO, Plaintiff-Appellee, v. E.I. DU PONT DE NEMOURS & CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 380

818 F.2d 380

43 Fair Empl.Prac.Cas. 1790,

43 Empl. Prac. Dec. P 37,171,

2 Indiv.Empl.Rts.Cas. 272

Richard GARZIANO, Plaintiff-Appellee, v. E.I. DU PONT DE NEMOURS & CO., Defendant-Appellant.

No. 86-4025.

United States Court of Appeals, Fifth Circuit.

June 3, 1987.

Alex A. Alston, Jr., Jackson, Miss., for defendant-appellant.

Joe Sam Owen, Ben F. Galloway, Gulfport, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARZA, WILLIAMS and GARWOOD, Circuit Judges.

GARZA, Circuit Judge.

This case concerns the operation and scope of qualified privilege available as a shield to a libel and slander action when an employer publishes a statement on company policy to its employees coupled with the company's explanation for a former employee's dismissal.

I

Richard Garziano, plaintiff-appellee, was employed at defendant-appellant Du Pont's plant in DeLisle, Mississippi, as a maintenance technician from May 31, 1979 until July 21, 1981. Mr. Garziano was terminated in 1981 due to an alleged incident of sexual harassment.

On Friday, July 17, 1981, Garziano and another maintenance employee, William Strayham, were assigned to a "shut-down" operation in one area of the plant. Due to the unbearable heat that day, the shift was scheduled to end at 2:00 p.m. so that no employees would pass out on the job. At approximately 1:30 p.m. the maintenance crew supervisor, Dan Seliga, instructed Garziano and Strayham to go to "chemical unloading" at the north end of the plant because two other maintenance employees, Charles Crawford and Donna Matheny, needed some assistance. Crawford and Matheny were working on a blocked silocate line, and acid had ruined some sections of the connecting pipe and insulation. About five minutes before 2:00 p.m., Matheny went to get the maintenance crew's pick-up truck and drove it back to chemical unloading so the crew could haul the stripped insulation and sections of pipe back to the repair shop. At this point, the sequence of events is sharply disputed between Garziano and Matheny.

According to Matheny, when she returned to chemical unloading with the pick-up truck the crew loaded the insulation and pipe into the back of the truck and then Crawford and Strayham jumped in the back. Garziano made a sexually abusive comment ¹ to Matheny and climbed into the cab of the pick-up. Garziano slid over next to Matheny and began to make loud noises and grab at her while enroute to the repair shop. Matheny was trying to get Garziano to stop this while she was driving to the dumpster at the back part of the shop when Garziano "reached over at that point and put his hand on the back of my neck and ran his fingers in my hair...." Matheny abruptly stopped the truck short of its destination and jumped out, hurriedly walking away from the truck and disappearing into the shop.

According to Garziano, when Matheny returned to chemical unloading in the pick-up truck she didn't get out of the truck to help load the pipe and insulation into the back. After the three men loaded the tools and equipment into the truck, Garziano got in the cab and "slid to the middle of the truck" because "Crawford was right behind me, and he began getting in [the cab] with me." Crawford then said he would ride in the bed of the truck with Strayham and jumped in the back. When Crawford didn't get in the cab, Garziano slid back over to the passenger seat and closed the door. Garziano denies touching or verbally abusing Matheny. Garziano says that Matheny did stop short of the trash bin where the crew was going to dump the pipe and insulation that could not be salvaged. Garziano and Crawford both told Matheny to back the truck up to the dumpster, but she told them to "do it themselves" and Mrs. Matheny came in Monday morning, July 20, 1981, and voluntarily resigned her position as a maintenance employee at Du Pont. As a matter of course, Du Pont conducts exit interviews with all employees who leave the company, and Matheny was interviewed Monday afternoon by employment supervisor Larry Talbert and asked several questions about her experience at the plant. Although initially hesitant, Mrs. Matheny described her version of the incident that had occurred on July 17, 1981. Matheny also informed Talbert of an earlier instance where Garziano had attempted to touch her between the legs with his foot when seated across from her at a conference table during a maintenance crew safety meeting. Matheny explained that she quit because "women are not made to feel like a part of the team unless the men can have their way with them, and no one does anything about it." While Matheny complained of general harassment from "the men," the only individual specifically mentioned was Richard Garziano.

went into the shop area. Garziano said that one of the men was going to "report" Matheny for this, but none of them did.

Du Pont considered this charge "very serious" and began an investigation. The following morning Du Pont interviewed Garziano and the two other employees, Crawford and Strayham, who were alleged to have some knowledge of the truck incident. ² Garziano denied Matheny's allegations completely. Neither Crawford nor Strayham could entirely confirm or deny the events related by Matheny. Both Crawford and Strayham said that they did not hear Garziano say anything to Matheny before he entered the cab of the pick-up, but both told the Du Pont officials investigating the incident that they did not sit facing the cab, so neither one saw anything that may have transpired. Both employees did state that Matheny had stopped short of the dumpster and had hustled into the shop area. After consultation with a number of supervisory employees, management confirmed that Matheny had reported Garziano's alleged harassment at the maintenance crew safety meeting to her supervisor, Dan Seliga, and she had previously spoken to the mechanical supervisor, Jack Taylor, about Richard Garziano's abusive language and demeanor towards her. ³ Several meetings were held that day to discuss the company's response. ⁴ Finally, the plant manager discussed this situation with legal counsel and the home office in Delaware and then dismissed Garziano.

Both parties agree that Garziano's discharge caused a number of rumors to circulate at Du Pont's plant. According to Du Pont, a number of employees expressed "hypothetical concerns" about what constituted sexual harassment and whether an innocent bumping or touching of a female employee would constitute grounds for dismissal. Other employees asked, specifically, the reasons for Garziano's termination. Du Pont issued Management Information Bulletin No. 27-81 in response to these concerns. The introductory paragraph to the bulletin entitled Sexual Harassment stated:

The recent sexual harassment incident which resulted in an employee's termination has raised supervisory and employee questions about the subject. This particular incident was determined to be a serious act of employee misconduct, but in deference to the employees involved cannot be discussed in detail. However, deliberate, repeated, and unsolicited physical contact as well as significant verbal abuse was involved in this case.

The bulletin went on to define sexual harassment as described in regulations issued by the Equal Employment Opportunity Commission (EEOC). ⁵ Management Information Bulletin (MIB) 27-81 was distributed to approximately 140 supervisors with instructions to cover the key points in the bulletin with all of their employees. ⁶ The bulletin was read verbatim to some employees and summarized to most other employees, but no evidence exists to show that the bulletin was posted on bulletin boards or distributed to employees. Garziano did obtain a copy of the bulletin. Though not mentioning him by name, the introductory paragraph referred to the reasons for Garziano's dismissal. Garziano subsequently brought an action against Du Pont for libel and slander. ⁷

Du Pont denied the material allegations of the complaint but admitted that it had indeed issued Management Information Bulletin 27-81 and that the first paragraph was intended to refer to Garziano. However, Du Pont moved for summary judgment on the basis of a qualified privilege protecting communications between employers and employees. The district court denied this motion. During the trial Du Pont made several motions for a directed verdict on the grounds that MIB 27-81 was protected by a qualified privilege as a matter of law and that Plaintiff had failed to produce clear and convincing evidence that Defendant issued and published the bulletin in question with actual malice or in bad faith. The trial court reserved ruling on those motions and ultimately sent the case to the jury. On August 15, 1984, the jury returned a verdict in favor of Garziano and awarded him $93,000 in compensatory damages. The jury denied Garziano's request for punitive damages in a special interrogatory finding Du Pont exhibited no malice, recklessness or wanton disregard for Garziano's rights in publishing the bulletin. After the jury rendered a verdict, Du Pont sought a judgment notwithstanding the verdict or, alternatively, a new trial. Assessing the jury's verdict in view of the law on libel and slander in Mississippi, the district court judge explained that:

"Du Pont may have had an interest in telling its employees what would be considered sexual harassment; however, this interest could more likely have been achieved by less sweeping statements than those which were included in the bulletin. Telling employees what sexual harassment is and telling them who had been fired for it are two quite different things, as the jury apparently concluded.

* * *

* * * [T]he jury had the discretion, as this Court so instructed, to consider whether or not the privilege existed and if the privilege existed, whether or not it was abused. The jury...