Greene v. Zucker ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EVERETT GREENE, Captain, USN,
Plaintiff-Appellant,
v.
JOY ALLISON ZUCKER,
Defendant-Appellee, No. 97-2406
and
ALBRITTON COMMUNICATIONS, d/b/a
News Channel 8,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-1624-A)
Submitted: August 11, 1998
Decided: September 9, 1998
Before ERVIN and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Charles William Gittins, Alexandria, Virginia, for Appellant. George
F. West, Jr., Kathleen J.L. Holmes, RICHARDS, McGETTIGAN,
REILLY & WEST, P.C., Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Everett Greene appeals from the district court's order granting
summary judgment to Joy Zucker on his defamation action. For the
reasons that follow, we affirm.
In early 1995, Greene, a Navy captain, was selected for consider-
ation for promotion to the rank of Rear Admiral (lower half). Follow-
ing this announcement, a former female subordinate officer,
Lieutenant Elizabeth Felix, accused Greene of "overly familiar" con-
duct toward her and another female subordinate officer, Lieutenant
Pamela Castrucci. Greene was acquitted of all charges after a general
court martial. During the investigations preceding the court martial,
Zucker, a personal friend of Castrucci's, provided both sides with her
personal observations of Greene's conduct toward Castrucci. Zucker
had agreed to testify against Greene but was never called. While the
charges against Greene were pending, his consideration for promotion
was stayed.
In November 1995, the Navy notified Greene that the Secretary of
the Navy was reconsidering his pending promotion. Zucker then sent
a letter to the Secretary in which she described her observations of
Greene's conduct toward Castrucci in May 1993 and enclosed a pho-
tograph she had taken of Greene visiting Castrucci in the hospital.
Zucker's letter stated that Greene had visited Castrucci in her hospital
room and stayed for over two hours. According to Zucker, Greene
appeared in casual street clothes and remained in the room when he
was unwelcome. Zucker stated that, in her opinion, Greene's visits
were "inappropriate" and that his behavior constituted "conduct unbe-
coming an officer."
In January 1996, after interviewing Greene and reviewing the evi-
dence gathered during the investigation leading to his court martial,
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the Secretary recommended that Greene's name be withdrawn from
the promotion list. At the request of Greene's attorney, the Secretary
released Zucker's letter to Greene. He then instituted this action, con-
tending that her letter was false and defamatory and caused him to
lose his promotion. The district court found that Zucker's communi-
cation was entitled to a qualified privilege and that, because Greene
had failed to show actual malice or an abuse of that privilege, Zucker
was entitled to summary judgment. Greene appeals.
This court reviews the district court's granting of summary judg-
ment de novo. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(c). We construe all facts and draw reason-
able inferences in the favor of the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
Under Virginia law, defamation per se is a false statement which
prejudices a person in his or her profession or trade. See Great
Coastal Express v. Ellington, 334 S.E.2d 846, 852 (Va. 1985). To
establish "prejudice," the statements must relate to "the skills or char-
acter required to carry out the particular occupation of the plaintiff."
See Fleming v. Moore, 275 S.E.2d 632, 636 (Va. 1981). Assuming
Zucker's letter constituted defamation per se, she was nevertheless
entitled to summary judgment.
A communication made "in good faith on a subject matter in which
the person communicating has an interest, or owes a duty, legal,
moral or social, if made to a person having a corresponding interest
or duty" is shielded by a qualified privilege. See Ellington, 334 S.E.2d
at 853 (quoting Taylor v. Grace, 184 S.E. 211, 213 (1936)). The privi-
lege is lost only if the communication was made with actual malice
or if it was otherwise abused by excess publication or disproportion-
ately insulting language. See Ellington 334 S.E.2d at 853-54.
We find that Zucker's communication was protected by a qualified
privilege and that Greene failed to show that the privilege was lost for
any of the reasons cited above. Accordingly, we affirm the award of
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summary judgment to Zucker. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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