Stephanie Warren v. Federal National Mortgage Assn

Case: 18-11211 Document: 00515061721 Page: 1 Date Filed: 08/02/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-11211 August 2, 2019

Lyle W. Cayce

STEPHANIE WARREN, Clerk

Plaintiff – Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, also known as Fannie

Mae,

Defendant – Appellee.

Appeal from the United States District Court

for the Northern District of Texas

Before SMITH, WIENER, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Stephanie Warren challenges the district court’s grant of summary

judgment on her defamation claim against Fannie Mae and its evidentiary

decision to exclude a statement of another Fannie Mae employee. Because the

district court did not err in granting summary judgment or abuse its discretion

by excluding the statement, we AFFIRM.

I.

Fannie Mae is a private, federally chartered corporation that employs

sales representatives to manage foreclosed properties that it holds around the

country. Warren was one such sales representative. In 2013, Warren was one

Case: 18-11211 Document: 00515061721 Page: 2 Date Filed: 08/02/2019

No. 18-11211

of four employees fired after an internal investigation concluded that she had

violated the company’s Code of Conduct and Conflicts of Interest Policy by

working with an outside broker who was not approved by Fannie Mae and

concealing it from her supervisor.

After being fired, Warren sued Fannie Mae, raising claims of racial

discrimination under Title VII and Texas law, as well as defamation under

Texas law. The district court had federal question jurisdiction over the Title

VII claim and supplemental jurisdiction over the Texas law claims. 1 See 28

U.S.C. §§ 1331, 1367. The district court dismissed the defamation claim on

procedural grounds based on the district court’s reading of an arbitration policy

and granted summary judgment to Fannie Mae on the discrimination claims.

In the first appeal, we affirmed the district court’s summary judgment

on the discrimination claims but reversed and remanded the procedural

dismissal of the defamation claim. Warren v. Fed. Nat’l Mortg. Ass’n, 733 F.

App’x 753, 760–66 (5th Cir. 2018) (unpublished) (“Warren I”). We also affirmed

two of the district court’s evidentiary rulings, including, as relevant to this

appeal, the exclusion of the declaration of Keitha Jefferson (another Fannie

Mae employee). Id. at 759–60.

On remand, the district court granted summary judgment to Fannie Mae

on Warren’s defamation claim because Warren failed to produce evidence that

Fannie Mae had made any defamatory statement related to Warren’s receiving

kickbacks, and, to the extent that Fannie Mae had made any defamatory

statement related to Warren’s concealing her actions, Fannie Mae was entitled

to a qualified privilege under Texas law. As to receiving kickbacks, the district

1 Warren originally filed this lawsuit in Texas state court with both the discrimination

and defamation claims based in state law; however, after Fannie Mae removed the case to

federal court on the basis of diversity jurisdiction, Warren amended her complaint to add a

federal claim under Title VII.

2

Case: 18-11211 Document: 00515061721 Page: 3 Date Filed: 08/02/2019

No. 18-11211

court held that Warren’s allegation that the investigative report defamed her

failed because the report, on its face, explicitly concluded that she did not

receive kickbacks. As to concealing her actions, the district court held that, to

overcome Fannie Mae’s qualified privilege, Warren was required, but failed, to

adduce evidence that Fannie Mae either acted with malice or distributed the

report to persons without a valid interest. Moreover, the district court once

again concluded that Jefferson’s declaration was inadmissible.

Warren timely filed a second notice of appeal, challenging the summary

judgment and the exclusion of Jefferson’s declaration. We have jurisdiction

pursuant to 18 U.S.C. § 1291.

II.

We review a district court’s grant of summary judgment de novo. DeVoss

v. Sw. Airlines Co., 903 F.3d 487, 490 (5th Cir. 2018). Summary judgment is

appropriate when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” if it would affect the outcome of the

case, and a dispute is “‘genuine’ if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Renwick v. PNK Lake

Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (citation omitted). Evidence

at the summary judgment stage must be viewed in the light most favorable to

the non-moving party, and reasonable inferences must be drawn in that party’s

favor. Fisk Elec. Co. v. DQSI, L.L.C., 894 F.3d 645, 650 (5th Cir. 2018).

We review a district court’s decision to exclude evidence in connection

with a summary judgment motion under the abuse of discretion standard.

Maurer v. Indep. Town, 870 F.3d 380, 383 (5th Cir. 2017). A district court

abuses its discretion when an evidentiary ruling is based on an erroneous view

of the law or a clearly erroneous assessment of the evidence. Hinojosa v.

Butler, 547 F.3d 285, 292 (5th Cir. 2008).

3

Case: 18-11211 Document: 00515061721 Page: 4 Date Filed: 08/02/2019

No. 18-11211

III.

In this appeal, Warren challenges: (1) the summary judgment against

her on her defamation claim; and (2) the exclusion of Jefferson’s declaration.

We address each argument in turn.

A.

Fannie Mae contends that the district court did not err in granting

summary judgment on Warren’s defamation claims because: (1) Warren failed

to present a prima facie case; and (2) even if Warren had presented a prima

facie case, she failed to overcome Fannie Mae’s qualified privilege under

Texas law.

1.

We begin by addressing whether Warren presented a prima facie case

for her defamation claim. As articulated by the Supreme Court of Texas,

[t]he elements of a prima facie case for defamation are: (1) the

defendant published a false statement; (2) that defamed the

plaintiff; (3) with the requisite degree of fault regarding the truth

of the statement (negligence if the plaintiff is a private individual);

and (4) damages, unless the statement constitutes defamation

per se.

Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017); accord WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998). In defamation suits brought by

private individuals, truth is an affirmative defense. See Randall’s Food Mkts.,

Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).

Warren alleges that there were two types of defamatory statements

made about her: the investigative report itself and comments allegedly made

by other Fannie Mae employees. As to the investigative report, Fannie Mae

contends that Warren has not met her burden as to requirement (2)—

establishing that the statement was actually defamatory concerning her. As

to the comments allegedly made by other employees, Fannie Mae contends that

4

Case: 18-11211 Document: 00515061721 Page: 5 Date Filed: 08/02/2019

No. 18-11211

Warren has not met her burden as to requirement (1)—establishing that the

statements were actually published.

A false statement can be defamatory under Texas law if it injures a

person’s reputation. See Bedford, 520 S.W.3d at 905; Hancock v. Variyam, 400

S.W.3d 59, 62 (Tex. 2013); Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (2013).

See also Nunnally & Franklin, 1 Tex. Prac. Guide Torts § 1:33 (Dec. 2018

update) (discussing defamation under Texas law). Whether an alleged

statement is defamatory depends on how a person of ordinary intelligence

would perceive the statement in light of the surrounding circumstances. See

Carr v. Brasher, 776 S.W.2d 567, 569–70 (Tex. 1989). “Whether words are

capable of the defamatory meaning the plaintiff attributes to them is a

question of law for the court.” Id. at 569. Only if the court determines the

language to be “ambiguous or of doubtful import” should a jury determine what

effect the statement would have on an ordinary person. See Musser v. Smith

Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). Texas law provides for

liability if the “gist” of a collection of statements conveys a false and defamatory

impression, even if each statement is literally correct. See Turner v. KTRK

Television, Inc., 38 S.W.3d 103, 116–17 (Tex. 2000).

Under Texas law, false statements are published if they are

communicated, either in writing or orally, “to some third person who is capable

of understanding their defamatory import and in such a way that the third

person did so understand.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572,

579 (Tex. 2017) (citation and quotation marks omitted).

Warren asserts that there were three aspects of the investigative report

that defamed her. First, she asserts that the gist of the investigative report

was that she received kickbacks. Second, she asserts another gist of the report

was that she caused financial loss to the company. And third, she asserts that

5

Case: 18-11211 Document: 00515061721 Page: 6 Date Filed: 08/02/2019

No. 18-11211

the report’s conclusion that she attempted to conceal her association with the

outside broker was defamatory.

We agree with Fannie Mae that Warren failed to establish genuine

disputes of material fact as to the first and second aspects in which she

contends the investigative report was defamatory. Her most-emphasized

assertion is that the gist of the report accused her of receiving kickbacks.

However, as the district court observed, that is not a reasonable reading of the

report. Indeed, the report affirmatively stated the opposite, concluding that

there was “no evidence that Ms. Warren had accepted gifts or other benefits

from [the outside broker].” Therefore, we hold that a person of ordinary

intelligence could not read the report and reasonably conclude that its gist was

that Warren received kickbacks. Similarly, we also hold that a person of

ordinary intelligence could not reasonably conclude that the report accused

Warren of causing financial loss to the company, as nothing in the report

discussed financial losses.

That leaves Warren’s contention that the investigative report defamed

her by accusing her of concealing her association with the outside broker.

Truth is a defense against a charge of defamation, and substantial evidence in

the record—including e-mail exchanges between Warren and the outside

broker—supports the conclusion that Warren did in fact attempt to conceal

that association. However, Warren presented as contrary evidence her own

sworn declaration denying that she attempted to conceal the association.

Construing the evidence in the light most favorable to the non-moving party,

Warren may have raised a genuine dispute of material fact on this point

sufficient to survive summary judgment. However, even if Warren had made

her prima facie case on this point, it is defeated by Fannie Mae’s qualified

privilege. See infra Section III.A.2.

6

Case: 18-11211 Document: 00515061721 Page: 7 Date Filed: 08/02/2019

No. 18-11211

Turning to the comments allegedly made by other employees at Fannie

Mae, Warren asserts that her own testimony “creates the inference that

allegations that [she] took kickbacks were . . . repeated to Ray Donovan by

Shirley Small [employees at Fannie Mae], and forwarded to his wife at Freddie

Mac.” She asserts that “[s]uch allegations have been widely republished within

the industry.” She also asserts that “Ms. Donovan [an employee at Freddie

Mac] likely had her husband [an employee at Fannie Mae] inquire, and retrieve

the name of Ms. Warren as someone who allegedly received kickbacks.” She

further asserts that “Donovan apparently summarized the accusations against

Warren as her receiving kickbacks,” but later says that “[r]egardless of

whether the allegations of kickbacks routed through Donovan, they clearly

started at Fannie Mae, and landed at Freddie Mac. Warren was unable to even

get interviews at Freddie Mac.”

We agree with Fannie Mae that Warren failed to establish a prima facie

case as to whether these allegedly defamatory comments were published.

Warren does not offer any evidence, other than her own speculation, as to what

these other people allegedly said, when and where they allegedly made the

statements, and to whom they are alleged to have made the statements. That

is not enough to survive summary judgment.

Furthermore, Warren does not raise a genuine dispute of material fact

as to whether those employees would have been acting within the course and

scope of their employment when they allegedly made the statements. See

Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 578 (Tex. 2002) (an

employer can only be liable for defamatory statements made by its employees

when “the act is done while the employee is acting within his general authority

and for the benefit of the employer”). Warren offers no evidence that any of

the employees she named had managerial authority over her, or that their

employment would have required them to discuss her termination in any way.

7

Case: 18-11211 Document: 00515061721 Page: 8 Date Filed: 08/02/2019

No. 18-11211

For those reasons, summary judgment was appropriate for most aspects

of Warren’s defamation claim because she largely failed to make a prima facie

case. However, to the extent that she did make a prima facie case by alleging

that the investigative report defamed her by accusing her of concealing her

association with the outside broker, her defamation claim is defeated by

Fannie Mae’s qualified privilege as discussed below.

2.

Even assuming that Warren had made a prima facie case for all the

aspects of her defamation claim, summary judgment was proper because she

failed to overcome Fannie Mae’s qualified privilege under Texas law.

“Under Texas law, ‘[a] communication on a subject in which the author

or the public has an interest, or with respect to which the author has a duty to

perform to another owing a corresponding duty, may constitute a qualified or

conditional privilege.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312

(5th Cir. 1995) (quoting Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 630 (Tex.

App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)). See also Nunnally &

Franklin, 2 Tex. Prac. Guide Torts § 9:290 (Dec. 2018 update) (discussing

qualified privilege against defamation claims under Texas law). “Whether a

conditional or qualified privilege exists is a question of law for the court.”

Frakes v. Crete Carrier Grp., 579 F.3d 426, 430 (5th Cir. 2009) (quoting E. Tex.

Med. Ctr. Cancer Inst. v. Anderson, 991 S.W.2d 55, 60 (Tex. App.—Tyler 1998,

pet. denied)).

Qualified privilege protects employers from defamation liability for

communications made while investigating alleged wrongdoings, so long as the

communications are made only to persons with a valid interest. Jackson v.

Dallas Cty. Juvenile Dep’t, 288 F. App’x 909, 912 (5th Cir. 2008) (unpublished)

(citing Randall’s, 891 S.W.2d at 646). That privilege can be overcome if the

plaintiff shows that the statement was made with actual malice, which means

8

Case: 18-11211 Document: 00515061721 Page: 9 Date Filed: 08/02/2019

No. 18-11211

knowledge of its falsity or reckless disregard for the truth. Id. at 912–13 (citing

Randall’s, 891 S.W.2d at 646). Malice can be shown by the omission of facts if

the publisher knew or strongly suspected that the omission would create a false

and defamatory impression. See Turner, 38 S.W.3d at 120–21. To survive a

summary judgment motion based on qualified privilege in federal court, the

plaintiff has the burden of establishing malice by clear and convincing

evidence. See Jackson, 288 F. App’x at 913 (citing ContiCommodity Servs., Inc.

v. Ragan, 63 F.3d 438, 442–43 (5th Cir. 1995)).

To overcome Fannie Mae’s qualified privilege, Warren therefore needed

to raise a genuine dispute of material fact as to whether Fannie Mae’s

investigative report was made with actual malice or excessively distributed.

See id. at 912–13 (citing Randall’s, 891 S.W.2d at 646). Warren argues that

there was both actual malice and excessive distribution, and we address each

contention in turn.

As to actual malice, Warren argues that the investigative report

evidences malice because the investigator “concealed information from her

report that would have cleared Warren.” To support her argument, Warren

points to a variety of alleged omissions from the report which she contends are

evidence of a “smear job.” Those alleged omissions include an e-mail between

Warren and the outside broker, some handwritten notes from the

investigator’s interview of Warren’s supervisor, and an assortment of other

data points not included in the investigative report. Warren asserts that

because these items did not make it into the investigative report, there is “a

fact issue that [the investigator] had been given orders to find some excuse to

fire Warren,” and that “[c]learly, [the investigator] and Fannie Mae were on

notice that the allegations within the investigative report were substantially

false, and were simply trying to justify terminating Warren anyway.”

9

Case: 18-11211 Document: 00515061721 Page: 10 Date Filed: 08/02/2019

No. 18-11211

Warren’s argument that she established malice by pointing to things

that the investigator left out of the report is unavailing. See Duffy, 44 F.3d at

313 (“Negligence, lack of investigation, or failure to act as a reasonably prudent

person are insufficient to show actual malice.” (citing Shearson Lehman

Hutton, Inc. v. Tucker, 806 S.W.2d 914, 924 (Tex. App.—Corpus Christi 1991,

writ dism’d w.o.j.))); see also Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002)

(“[Actual malice] requires more than a departure from reasonably prudent

conduct. Mere negligence is not enough. There must be evidence that the

defendant in fact entertained serious doubts as to the truth of his

publication[.]” (citations and quotation marks omitted)). As the district court

observed, none of the omissions that Warren points to establish that the

investigator knew that the report was false or recklessly disregarded the truth.

Moreover, Warren’s assertion that there is “a fact issue that [the investigator]

had been given orders to find some excuse to fire Warren” is without any basis

in the record whatsoever.

As to excessive distribution, Warren asserts that Fannie Mae’s qualified

privilege was waived because “[t]he false reports of Warren taking kickbacks

were circulated at Fannie Mae and in the community, and conflicting

testimony showed that Small communicated this information to Ray Donovan

[Fannie Mae employees], who then passed it to his wife [a Freddie Mac

employee],” and that “[n]either Small nor Donovan had legitimate need to

know the information.”

As the district court observed, Warren offers no evidence, other than her

own speculation, that any person without a valid interest received the report

or was made aware of its findings. She does not point to any evidence in the

record that the report came into the possession of Small, Donovan and/or other

Fannie Mae employees who she asserts had no valid interest in the

information. Furthermore, as the district court observed, this assertion

10

Case: 18-11211 Document: 00515061721 Page: 11 Date Filed: 08/02/2019

No. 18-11211

contradicts her other assertions; for, if these employees had improperly

accessed the report (as she alleges), it would seem unlikely that they told other

people she was accepting kickbacks (as she also alleges), as the report

expressly concluded that there was no evidence that she accepted kickbacks.

For those reasons, Fannie Mae is entitled to summary judgment because

of its qualified privilege under Texas law.

B.

Next, we address whether the district court abused its discretion by

excluding Keitha Jefferson’s declaration. To explain its conclusion that

Jefferson’s declaration was inadmissible, the district court cited its ruling in a

companion case, Sandidge v. Federal National Mortgage Ass’n., 2017 WL

2362016 (N.D. Tex. May 31, 2017). In that case, the portion of Jefferson’s

statement indicating that she had heard from someone named Marilyn

Bynum-Wilson 2—who heard from other unnamed employees— “statements to

the effect that” Warren and another Fannie Mae employee were fired for

improperly accepting gifts was deemed inadmissible hearsay. Id. at *9. The

rest of the declaration was deemed to have such slight probative value that it

“would confuse the issue rather than resolve it.” Id.

Warren contends that there are three reasons why Jefferson’s

declaration should have been held admissible. First, she argues that

Jefferson’s statement about what Bynum-Wilson said was not hearsay because

it was not being offered to prove the truth of the matter asserted. Second, she

argues that the statement is admissible under the Federal Rule of Evidence

801(d)(2)(D) hearsay exception for a statement made by an employee of an

opposing party on a matter within her scope of employment. And third, she

Fannie Mae observes that Warren does not offer any evidence to establish who

2

Bynum-Wilson is or that she was even an employee of Fannie Mae.

11

Case: 18-11211 Document: 00515061721 Page: 12 Date Filed: 08/02/2019

No. 18-11211

argues that other portions of Jefferson’s statement are admissible under

Federal Rules of Evidence 608, 405, and 803(21) because they evidence that

the investigators “had poor reputations for truthfulness.”

We agree with Fannie Mae that the district court did not abuse its

discretion by excluding Jefferson’s declaration. First, the declaration was

partially hearsay. Contrary to Warren’s assertion, Jefferson’s statement about

what Bynum-Wilson allegedly said other people allegedly said is, in fact, being

offered for the truth of the matter asserted. This is hearsay within hearsay, so

both levels must satisfy an exception. See Rock v. Huffco Gas & Oil Co., Inc.,

922 F.2d 272, 280 (5th Cir. 1991). Even if Jefferson’s statement about what

Bynum-Wilson allegedly said could be a verbal act on the part of Bynum-

Wilson, that does nothing to advance Warren’s claim against Fannie Mae. See

Overton v. United States, 403 F.2d 444, 447 (5th Cir. 1968) (discussing the

verbal act doctrine). To advance Warren’s claim against Fannie Mae, it

matters whether Bynum-Wilson was truthful as to what she heard the

unnamed employees say. See Wells v. Shop Rite Foods, Inc., 474 F.2d 838, 839

(5th Cir. 1973) (excluding as hearsay, in a defamation suit against the

employer, an employee’s statement that other employees told him that they

heard the plaintiff was fired for stealing). Therefore, that portion of Jefferson’s

declaration is hearsay for the purposes of this case.

Second, as for that portion of Jefferson’s declaration’s being admissible

under a hearsay exception because it is an opposing party admission by an

employee acting within her scope of employment, Warren has not established

that Jefferson, Bynum-Wilson, or any other employee was acting within their

scope of employment when allegedly discussing Warren’s termination.

And third, as for the other parts of Jefferson’s declaration’s being

admissible because they state Jefferson’s “belief” that the investigators had

poor reputations for truthfulness, we have already held that the district court

12

Case: 18-11211 Document: 00515061721 Page: 13 Date Filed: 08/02/2019

No. 18-11211

did not abuse its discretion by excluding those statements because they are

“merely conclusory.” See Warren I, 733 F. App’x at 760. Accordingly, the

district court did not err by excluding them under Rule 403 in this case.

For those reasons, the district court did not abuse its discretion by

excluding Jefferson’s declaration.

* * * *

The summary judgment is AFFIRMED.

13