Angela Cummings v. Valley Health System , 705 F. App'x 529 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ANGELA CUMMINGS, No. 16-15369
Plaintiff-Appellant, D.C. No.
2:13-cv-00479-APG-GWF
v.
VALLEY HEALTH SYSTEM, LLC, MEMORANDUM*
DBA Desert Springs Hospital; and
RAEJOHNE FOSTER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted June 5, 2017
Pasadena, California
Before: GRABER, SACK,** and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert D. Sack, United States Circuit Judge for the
Court of Appeals for the Second Circuit, sitting by designation.
Angela Cummings worked as a telemetry monitor technician at Valley
Health System, LLC dba Desert Springs Hospital (“DSH”) from 2005 until 2013.
Throughout her tenure at DSH, Cummings had a hostile relationship with one of
her co-workers, Raejohne Foster.
In May 2012 and June 2012, Cummings complained to DSH that Foster was
harassing her in the workplace; DSH investigated but did not find sufficient
evidence to take action. In July 2012, Cummings filed charges with the Nevada
Equal Rights Commission and the Equal Employment Opportunity Commission,
complaining of race and gender discrimination. On December 18, 2012, Cummings
met with DSH’s new Human Resources Director to complain about discrimination.
On December 21, 2012, DSH issued three corrective actions against Cummings for
several infractions she had committed in the prior month. These three corrective
actions, combined with two issued earlier in the year, placed Cummings one
violation away from termination under DSH’s progressive discipline policy.
The final violation occurred on January 11, 2013, when DSH suspended
Cummings pending an investigation into charges that she had been watching a
video on the computer instead of monitoring the telemetry unit. On January 12,
2013, the DSH security office received a report from an employee named “Diane”
in the telemetry unit, who stated that she had heard from “several employees” that
2
Cummings threatened to “shoot up the place” if she were terminated. Donna
Adkins, a DSH supervisor, responded to this report by informing DSH employees
that the security code to the door would be changed as a precaution against
Cummings’ purported threat. Adkins then initiated an investigation and determined
that the reported threat was nothing more than a false rumor, but she could not
identify the source of the rumor. Another DSH employee, Synthia Armstrong,
checked the shift schedule for the telemetry unit on January 12, 2013, and
determined that Foster was the other technician working with Diane that day.
On January 30, 2013, DSH held a meeting with Cummings to discuss her
future with the company, but Cummings stormed out of the meeting before a
resolution could be reached. DSH terminated Cummings’ employment effective
February 20, 2013. Cummings filed suit against DSH, alleging defamation,
retaliation, and discharge in violation of public policy. She also sued Foster,
alleging defamation and intentional interference with prospective economic
advantage. The district court granted summary judgment in favor of DSH and
Foster on all claims. We review the district court’s grant of summary judgment de
novo, Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1139–40 (9th Cir. 2002).
We affirm in part, reverse in part, and remand.
3
1. Cummings’ defamation claim against DSH fails because Adkins’
statement to DSH employees about Cummings’ alleged threat was privileged. The
intracorporate communication privilege applies to a statement involving “the
regular course of the corporation’s business,” if the statement is made in good faith
to a person with an interest in the subject matter of the statement. Simpson v. Mars,
Inc., 929 P.2d 966, 968 (Nev. 1997). Here, Adkins received a genuine report about
Cummings’ threat from the DSH security office, and she took precautions to
protect DSH employees by informing them about the threat. No reasonable jury
could find that Adkins lacked a good-faith belief in the statement or acted with
malice.
2. Cummings alleges that DSH retaliated against her in violation of Title
VII, 42 U.S.C. § 1981, and Nevada Revised Statutes § 613.330. Each of these
statutes is analyzed using the McDonnell Douglas framework. See Dawson v.
Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011) (Title VII retaliation claims are
subject to the McDonnell Douglas framework); Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1104 (9th Cir. 2008) (Section 1981 claims are subject to the same
standard as Title VII claims); Apeceche v. White Pine Cty., 615 P.2d 975, 977
(Nev. 1980) (Nev. Rev. Stat. § 613.330 claims are subject to the same standard as
Title VII).
4
Even assuming that Cummings has established a prima facie case of
retaliation at step one of the McDonnell Douglas analysis, DSH has met its burden
at step two of the McDonnell Douglas framework by articulating a legitimate, non-
retaliatory reason for terminating Cummings’ employment. DSH fired Cummings
in accordance with its progressive discipline policy after she had accrued six
corrective actions. See Unt v. Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir.
1985) (“An employee is not protected by Title VII when he violates legitimate
company rules, knowingly disobeys company orders, disrupts the work
environment of his employer, or willfully interferes with the attainment of the
employer’s goals.”).
Cummings has not shown pretext, as required at step three of the McDonnell
Douglas analysis. Despite the close temporal proximity between Cummings’
discrimination complaint to DSH on December 18, 2012, and the three corrective
actions DSH issued on December 21, 2012, the surrounding circumstances do not
show pretext. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003)
(“[T]here is no set time within which acts necessarily support an inference of
retaliation. . . . [Retaliation] must be decided in the light of the timing and the
surrounding circumstances.”). First, each of the corrective actions that DSH issued
to Cummings was based on an established company policy or practice. Next, DSH
5
was responsive to Cummings’ complaints of harassment and provided Cummings
with a summary of its investigations into her claims. Finally, DSH first discovered
Cummings’ video misconduct after Cummings had complained about
discrimination; this new, intervening discovery undermines the causal inference.
See Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014) (“[N]ew
information revealed by [an intervening] investigation defeats any causal inference
that might otherwise follow from the temporal proximity between . . . protected
activity and . . . termination.”).
3. Cummings’ claim alleging discharge in violation of public policy
against DSH also fails because it is premised on the same legal theory and facts as
her retaliation claim.
4. Cummings’ claim of intentional interference with prospective
economic advantage against Foster fails because Cummings has not shown “actual
harm . . . as a result of the defendant’s conduct.” Leavitt v. Leisure Sports
Incorporation, 734 P.2d 1221, 1225 (Nev. 1987). A defendant is only liable to a
plaintiff “for the pecuniary harm resulting from loss of the benefits of the
[economic] relation.” Restatement (Second) of Torts § 766B (1979). There is no
evidence in the record showing that Cummings’ economic relationship with DSH
6
was severed as a result of Foster’s rumor; rather, DSH fired Cummings because of
the corrective actions she received in 2012 and the investigation revealing that she
had been watching a video during her shift monitoring the telemetry unit.
5. Finally, Cummings’ defamation claim against Foster survives. To
establish a defamation claim, a plaintiff must demonstrate (1) a false and
defamatory statement of fact by the defendant; (2) an unprivileged publication to a
third person; (3) fault, amounting to at least negligence; and (4) actual or presumed
damages.1 Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005). The main issue on
appeal is whether a triable issue of fact exists that Foster was the source of the
defamatory statement about Cummings’ threat to “shoot up the place.”
Drawing all inferences in Cummings’ favor, as we must at the summary
judgment stage, we hold that there is enough circumstantial evidence from which a
reasonable jury could conclude that Foster started the rumor. Diaz v. Eagle
Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (“Summary judgment is
1
While a lack of actual damages defeats Cummings’ intentional interference
claim, it is not fatal to her defamation claim because damages are presumed where
a plaintiff alleges slander per se. Branda v. Sanford, 637 P.2d 1223, 1225 (Nev.
1981). Under Nevada law, one category of slander per se includes statements “that
the plaintiff committed a crime.” Nev. Indep. Broad. Corp. v. Allen, 664 P.2d 337,
341 (Nev. 1983). Here, the alleged defamatory statement—that Cummings had
threatened to “shoot up the place”—essentially accuses Cummings of making a
criminal threat and, therefore, constitutes slander per se.
7
inappropriate if reasonable jurors, drawing all inferences in favor of the
nonmoving party, could return a verdict in the nonmoving party’s favor.”). First,
the DSH security report indicated that the threat was reported by an employee
named “Diane” in the telemetry unit. Next, Armstrong testified that on the day of
the threat report, Foster and Diane worked together in the telemetry room,
according to the shift schedule. Telemetry technicians work in pairs, meaning that
the only two employees in the telemetry room that day were Foster and Diane.
Finally, as Foster herself acknowledged in deposition testimony, she and
Cummings have had a contentious history, and Foster has previously reported
Cummings for several violations of company policy.
We also conclude that Foster is not covered by the intracorporate
communication privilege. “[P]rivileges are defenses to a defamation claim and,
therefore, the defendant has the initial burden of properly alleging the privilege and
then of proving the allegations at trial.” Lubin v. Kunin, 17 P.3d 422, 427 (Nev.
2001) (per curiam). Foster has not met this burden because there is no evidence
that she made the statement in good faith. See Circus Circus Hotels, Inc. v.
Witherspoon, 657 P.2d 101, 105 (Nev. 1983) (per curiam) (“A qualified or
conditional privilege exists where a defamatory statement is made in good faith . . .
.” (emphasis added)).
8
This is not to say that all cases involving rumors swirling around the
workplace will survive to see a defamation trial. Absent direct evidence, a plaintiff
must provide more than mere speculation or suspicion to create a triable issue of
fact that one of her co-workers was the source of a defamatory statement. British
Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (“[A] jury is
permitted to draw only those inferences of which the evidence is reasonably
susceptible; it may not resort to speculation.”). The evidence here, however,
presents a unique situation in which Foster—who harbored the most animus
against Cummings and has actively targeted Cummings in the past—was the only
other person in a room with Diane on the day that Diane reported that she heard
about Cummings’ threat of violence from fellow employees. On this record, we
conclude that a triable issue of fact exists as to whether Foster originated the
defamatory statement.
Therefore, we reverse the district court’s grant of summary judgment on the
defamation claim against Foster.
AFFIRMED in part, REVERSED in part, and REMANDED. The parties
shall bear their own costs on appeal.
9
Cummings v. Valley Health System, LLC, No. 16-15369 FILED
AUG 11 2017
Sack, Circuit Judge, dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
A plaintiff brings a slander per se claim against a co-worker, and that claim
is defeated on summary judgment. On review, an appellate court holds that the
claim should have survived the defendant's motion for summary judgment
notwithstanding that the plaintiff adduced no direct evidence even suggesting that
the defendant made the allegedly defamatory statement: the defendant denied
making it; the individual who reported the statement said that she heard it from
"several" individuals without identifying the defendant as one of those multiple
speakers; and no witness testified that the defendant was the source of the
statement. That, as I see it, is the case at bar. Although I agree with the panel
majority with respect to the remainder of this appeal, Memorandum Disposition
(hereinafter "MD") at 4-7, I respectfully dissent from its decision to return the case
to the district court for trial of the defamation claim brought against defendant-
appellee Raejohne Foster.
The plaintiff-appellant, Angela Cummings, was employed as a telemetry
monitor technician at and by Valley Health System, LLC dba Desert Springs
Hospital ("DSH") between 2005 and 2013. Declaration of Angela Cummings

The Honorable Robert D. Sack, United States Circuit Judge for the Court of
Appeals for the Second Circuit, sitting by designation.
1
(hereinafter "Cummings Dec.") ¶ 7, Excerpts of the Record (hereinafter "ER") Vol.
II at 38. Telemetry monitor technicians work in a small space in teams of two,
tracking dozens of panels that receive and display diagnostic information about
patients' heart health. Deposition of Angela Cummings (hereinafter "Cummings
Dep.") at 59-60, ER Vol. III at 16-17. Throughout her nearly eight-year tenure at
DSH, Cummings was repeatedly issued "corrective actions"1 and citations related
to various workplace infractions. In 2011, for example, she was cited for being
"very rude" toward a co-worker. DSH Corrective Action Report (Oct. 19, 2011),
ER Vol. III at 151. In 2012, she was disciplined for violating DSH's timekeeping
policies. DSH Corrective Action Report (July 28, 2012), ER Vol. III at 166. The
same year, a co-worker reported that Cummings failed to report to the telemetry
monitor room at the start of her shift, and when she did arrive she was "very rude,
abrupt and insubordinate." Ltr. from Beena Thomas to Jim Zolnowski (July 28,
2012), ER Vol. III at 196. It appears that Cummings occasionally clashed with her
co-workers. Her 2007 performance review states that while Cummings "is a good
monitor tech[nician] . . . [,] she need[s] to be considerate of her coworkers. She
does not consistently communicate with her peers." Cummings Dep. at 65, ER
Vol. III at 22.
1
A "corrective action" is a DSH term for a plan to identify and rectify improper
employee behavior.
2
In particular, Cummings had several disputes with the defendant-appellee,
Raejohne Foster, who was employed as a telemetry monitor technician by and at
DSH between 2004 and 2014. Deposition of Raejohne Foster (hereinafter "Foster
Dep.") at 20, ER Vol. II at 123. In 2012, for example, Cummings reported that
Foster had engaged in "repeated threats of violence, harassment and humiliation"
against her dating back to 2010. Ltr. from Angela Cummings to DSH Human
Resources (May 7, 2012), ER Vol. III at 153. DSH investigated but was unable to
substantiate those allegations. DSH Human Resources Memorandum (June 5,
2012), ER Vol. III at 157. Foster conceded, however, that the two did not get
along. See Foster Dep. at 23-24, ER Vol. II at 125. She recounted one incident,
for example, when Cummings reported Foster for watching an internet video when
Foster should have been monitoring telemetry panels. Id. at 31-32, ER Vol. II at
127. Foster estimated that, for her part, she reported Cummings for workplace
infractions on five occasions. Id. at 37, ER Vol. II at 129.
The events at issue in this litigation relate to a particular series of disputes in
late 2012 and early 2013. On or about December 1, 2012, Cummings was staffed
to the telemetry monitor room with Joanne Ruiz, another telemetry monitor
technician. Cummings Dec. ¶ 43, ER Vol. II at 43. During the Cummings-Ruiz
shift, Foster entered the telemetry monitor room to converse with Ruiz and saw
that Cummings was watching a video instead of the telemetry monitors. Id. Foster
3
created a video recording of the incident—which was provided to DSH—and
reported Cummings to her superiors. As a result of Foster sharing that information
with management, on January 11, 2013, Cummings was placed on "investigative
leave." DSH Corrective Action Report (Jan. 11, 2013), ER Vol. III at 220.
The next day, January 12, another DSH employee, identified in the record
only as "Diane," reported to the DSH Security Department that "[s]he heard from
several employees that [Cummings] . . . had made a comment that if she gets fired
she would come back and shoot up the place." DSH Incident Report (Jan. 12,
2013), ER Vol. III at 222.2 Nothing in the record—other than the rumors
themselves—supports the assertion that Cummings made such a threat. In fact,
according to Donna Adkins, then interim director of DSH critical care, Diane later
indicated that she meant only to pose a "what if" scenario. E-mail from Donna
Adkins to Yomi Fabiyi (Jan. 15, 2013), ER Vol. III at 224. Nonetheless, "as an
extra measure," Adkins "change[d] the security door code to the [telemetry
monitor] room." Id.
2
The only recordation of Diane's statement is in an "incident report" that recounts
Diane's statement to the DSH Security Department regarding "threatening
comments" attributed to Cummings in the incident report. DSH Incident Report
(Jan. 12, 2013), ER Vol. III at 222. Diane's deposition was not taken in connection
with this litigation or the events underlying it.
4
More than a month later, on February 20, 2013, Cummings' employment
was terminated because she had repeatedly violated DSH policies. Ltr. from Yomi
Fabiyi to Angela Cummings (Feb. 20, 2013), ER Vol. III at 238. Her termination
was unrelated to the alleged threatening statement attributed to her. Cummings
eventually filed a lawsuit against DSH and Foster, alleging, inter alia, that Foster
defamed her by conveying to Diane the rumor that Cummings had threatened to
"shoot up the place." Compl. ¶¶ 72-84, ER Vol. II at 30-31. The United States
District Court for the District of Nevada (Gordon, Judge) granted the defendants'
motion for summary judgment on all claims, deciding with respect to the slander
per se claim that recovery was barred by the intracorporate communication
privilege.
I agree with the majority—although not without some reluctance, as
explained below—that "Foster is not covered by the intracorporate communication
privilege." MD at 8. I do not agree, however, that Cummings adduced "enough
circumstantial evidence from which a reasonable jury could conclude that Foster
started the rumor." Id. at 7. "[M]ere allegation and speculation do not create a
factual dispute for purposes of summary judgment." Nelson v. Pima Cmty. Coll.,
83 F.3d 1075, 1081-82 (9th Cir. 1996). And "[a] mere scintilla of evidence will
not do, for a jury is permitted to draw only those inferences of which the evidence
5
is reasonably susceptible; it may not resort to speculation." British Airways Bd. v.
Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).
"A defamation claim requires demonstrating (1) a false and defamatory
statement of fact by the defendant concerning the plaintiff; (2) an unprivileged
publication to a third person; (3) fault, amounting to at least negligence; and (4)
actual or presumed damages." Pope v. Motel 6, 114 P.3d 277, 282, 121 Nev. 307,
315 (Nev. 2005) (emphasis added)). Cummings presented no more than a "mere
scintilla of evidence" supporting the notion that Foster made the allegedly
defamatory statement reported by Diane. This evidence would, in my view, permit
a reasonable jury to do little more than speculate that Foster made the allegedly
defamatory statement. I would therefore affirm that part of the district court's
judgment granting Foster's motion for summary judgment on the slander per se
claim, albeit on different grounds from those employed by the district court.
No direct evidence links Foster to the allegedly defamatory statement.
During her deposition, and while under oath, Foster herself denied spreading the
rumor. Foster Dep. at 62-62, ER Vol. II at 135. The DSH incident report, the sole
source for the parties' assertions concerning Diane's statement about the alleged
rumor, indicates that Diane heard the rumor from "several employees," but does
not identify Foster as one of them. DSH Incident Report (Jan. 12, 2013), ER Vol.
III at 222. Thus, the lone piece of direct evidence in this case as to the propagation
6
of the rumor identified neither Foster nor any other particular employee as the
speaker. A third employee stated in her sworn deposition that although she
"assumed" that Foster spread the allegedly defamatory rumor, the employee "[did
not] know if [Foster] did" in fact do so. Deposition of Synthia Armstrong at 53,
ER Vol. II at 64 (emphases added). Indeed, of the many DSH employees,
supervisors, and officers deposed in this case (Diane not among them), no one
testified that Foster made the allegedly defamatory statement.
The majority nonetheless concludes that that "there is enough circumstantial
evidence" connecting Foster to the allegedly defamatory statement on two grounds.
MD at 7. First, the majority notes that Foster and Diane "worked together in the
telemetry room" on January 12, 2013, the day Diane reported Cummings to the
DSH security department. Id. at 8. I do not think that circumstance permits the
inference—let alone supports the conclusion—that Diane heard the allegedly
defamatory rumor about Cummings from Foster. Although it is possible that
Foster told Diane the rumor while the two were together in the telemetry monitor
room, it is also possible that Diane—whose testimony as to these events was never
taken—heard the rumor while talking to a co-worker outside work, or while
chatting on the phone in her car, or while texting from her living room. The
possibilities are virtually endless. Some of these manifold possibilities seem to me
to be at least as likely as the inference drawn by the majority, in no small part
7
because Diane, we are told, reported hearing the rumor from "several employees."
DSH Incident Report (Jan. 12, 2013), ER Vol. III at 222. Moreover, when Diane
reported the alleged thereat on January 12, 2013, the day she was working with
Foster, she apparently did not state that she first heard the rumor that day. Perhaps
she instead heard the rumor the day before, when Cummings was placed on
investigative leave, and decided only the next day to raise the issue. We do not
know.
The majority further states that because Diane and Foster were the only
telemetry monitor technicians assigned to the telemetry monitor room on January
12, 2013, they were "the only two employees in the telemetry room" on the day
that Diane filed her report. MD at 8. I do not think that the record supports that
inference. DSH employees were, more or less freely, permitted to enter and exit
the telemetry room. DSH nurses delivered equipment to the telemetry room and
would have had an opportunity to engage with the monitor technicians. Id. at 75,
ER Vol. III at 30. And, of course, Cummings was ultimately terminated because
Foster entered the telemetry monitor room to converse with Ruiz on a day that she
was not staffed to that room, and in the process she saw Cummings failing to
attend to the monitors. Cummings Dec. ¶ 21, ER Vol. II at 43. Moreover,
telemetry monitor technicians were given multiple meal and restroom breaks
throughout the day, during which they very likely interacted with other employees.
8
Cummings Dep. at 115-18, ER Vol. III at 40-43. Thus, I do not think that a
reasonable juror could conclude either that Diane necessarily interacted with only
Foster on the day that Diane reported the Cummings rumor, or that Foster was the
source of the allegedly defamatory statement based on this evidence.
Second, the majority reasons that the slander per se claim brought against
Foster should survive summary judgment because "[Foster] and Cummings have
had a contentious history." MD at 8. That description of their relationship is
surely accurate. But to infer from that and Foster's history of "report[ing]
Cummings for several violations of company policy" that Foster spread the
allegedly defamatory rumor—absent statements under oath or otherwise to that
effect—seems to me to be no more than speculation. Id. at 8. Although Foster
may have had a motive to spread the allegedly defamatory statement, it is also
possible that others had a similar motive, especially in light of Cummings' apparent
unpopularity and questionable performance of her duties at DSH.3 I am reluctant
to conclude that Foster's arguably far-from-unique motive to utter the statement in
question—without testimony or other evidence that she in fact did so—sufficiently
supports an inference of misconduct to require Foster to stand trial. And I am not
3
That the motives of other co-workers were neither alleged in the complaint nor
unearthed during discovery does not help Cummings build her case against Foster.
Indeed, it may instead reveal that Cummings aims to pin the rumor on Foster, her
workplace adversary.
9
at all convinced on the broader point: that motive alone would in the ordinary run
of cases be sufficient to support a conclusion that a defendant published a
defamatory falsehood.
The Nevada Supreme Court has stated that "circumstantial evidence may be
used to prove that [a] defamatory statement was communicated to a third person
when evidence is presented regarding the tone in which the defamatory statement
was made or the proximity of third parties." Blanchard v. Circus Casinos, 127
Nev. 1119, 373 P.3d 896, 2011 WL 4337055, at *2 (Nev. 2011) (unpublished order
of affirmance) (internal quotation marks omitted). It has also suggested that a
plaintiff might rely on "direct or circumstantial evidence of the communication of
the defamatory statement to a third person." M & R Inv. Co. v. Mandarino, 103
Nev. 711, 716, 748 P.2d 488, 491 (Nev. 1987). But there was no question in those
cases that the defendant made the allegedly defamatory statement; the issue in both
was instead whether a statement that was admittedly made by a defendant was
published to a third party. Id.; Blanchard, 127 Nev. 1119, 373 P.3d 896, 2011 WL
4337055 at *2. The Nevada Supreme Court has not, to the best of my knowledge,
held, stated, or even suggested that a slander per se claim may proceed absent a
modicum of direct evidence connecting the defendant to the making of the
allegedly defamatory statement.
* * *
10
I have noted that I agree—albeit with some reluctance—with the majority's
conclusion that the district court erred by deciding that if Foster made the
statements in issue, she enjoyed a privilege to do so. See Simpson v. Mars, Inc.,
113 Nev. 188, 191, 929 P.2d 966, 968 (1997) (holding "that publication of
defamatory material to anyone other than the person defamed, even to agents, is
publication for the purpose of making a prima facie case of defamation"). I take a
moment to express my concern as to possible unfortunate consequences of that
conclusion.
The Department of Homeland Security has adopted as its own the familiar
post-9/11 slogan: "If you see something, say something."4 The allegedly
defamatory statement at issue in this appeal concerned threatened workplace
violence by a recently suspended co-worker who may well have harbored a bitter
grudge. If the headlines in the news media are to be believed, there is reason to
fear that such violence has become alarmingly frequent. On the day that our panel
heard argument in this appeal, for example, a former employee of a business in
Orlando, Florida reportedly walked into his former workplace and shot and killed
4
If You See Something, Say Something, DEP'T OF HOMELAND SECURITY,
https://www.dhs.gov/see-something-say-something (last visited July 31, 2017).
11
five employees, and then himself.5 Did words of warning precede the Orlando
carnage?
I fear that, after our decision today, at least in the context of potential
workplace violence, the Department of Homeland Security motto may have to be
amended to read: "If you see something say something—but be warned that if
your understanding of what you saw or heard turns out to be false, you must be
prepared to spend years defending yourself from a slander suit, and perhaps to
suffer a money judgment at the end of the ordeal."6 Might that deter someone
from reporting a rumored or otherwise-suspected plan to carry out a workplace
shooting spree where the plan indeed turns out to be afoot? I can only hope not.
* * *
5
See David Harris et al., Orlando Workplace Shooting: Former Employee Kills 5,
Then Himself, ORLANDO SENTINEL (June 5, 2017),
http://www.orlandosentinel.com/news/orlando-workplace-shooting/os-orlando-
workplace-shooting-20170605-story.html; see also Christal Hayes & Paul
Brinkmann, Orlando Shooting Is Latest in Growing Trend of Workplace Violence,
Expert Says, ORLANDO SENTINEL (June 5, 2017),
http://www.orlandosentinel.com/news/orlando-workplace-shooting/os-orlando-
workplace-shooting-violence-uptick-20170605-story.html ("There were 417
homicides at workplaces across the country in 2015, according to the [United
States] Bureau of Labor Statistics.").
6
Cf. Learned Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in
ASS'N OF THE BAR OF THE CITY OF NEW YORK, 3 LECTURES ON LEGAL TOPICS 89,
105 (1926) (musing a lawsuit should be "dread[ed] . . . beyond almost anything
else short of sickness and death"), quoted in Simon DeBartolo Grp., L.P. v. The
Richard E. Jacobs Grp., Inc., 186 F.3d 157, 177 (2d Cir. 1999).
12
Because I can find nothing of substance in the record sufficiently connecting
the defendant to utterance of the allegedly defamatory statement at issue, I
conclude that the district court was right to dismiss the claim, even if on another
basis than it used. Therefore and to that extent, I respectfully dissent.
13