Terry Johnson v. Cabot Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-13

TERRY JOHNSON

VERSUS

CABOT CORPORATION

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ON WRIT OF CERTIORARI FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 132255, DIVISION “F”
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Jonathan W.
Perry, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Charles H. Hollis
Allison A. Fish
The Kullman Firm
1100 Poydras Street, Suite 1600
New Orleans, LA 70163
(504) 524-4162
COUNSEL FOR RELATOR:
Cabot Corporation

G. Karl Bernard
Eric L. Register
Karl Bernard Law, LLC
1615 Poydras Street, Suite 101
New Orleans, LA 70112
(504) 412-9953
COUNSEL FOR RESPONDENT:
Terry Johnson

PERRY, Judge.

This case involves a claim for defamation1 brought by Terry Johnson

(“Johnson”) against his employer, Cabot Corporation (“Cabot”). Cabot seeks a

supervisory writ of certiorari from the trial court’s judgment which denied its motion

for summary judgment. For the following reasons, we hereby grant the writ

application, reverse the ruling of the trial court, and enter a summary judgment in

favor of Cabot dismissing the claims of Johnson, with prejudice.

FACTS AND PROCEDURE

This defamation action has its origin in an incident that occurred on June 8,

2017, at Cabot’s warehouse where Johnson works as a warehouse technician. On

that day, Johnson, an African American male, claimed that he cautioned Lloyd

Concier (“Concier”), a Caucasian male, as he began to unload an Action Box truck

containing oversized cardboard stacked on undersized pallets. Johnson cautioned

Concier because he believed Concier’s actions were not only unsafe but were

contrary to instructions they had been given at an earlier shift meeting. Johnson

claims that Concier jumped off the forklift and started rushing at him while yelling

in an aggressive manner. Johnson admits in his affidavit filed in opposition to

Cabot’s motion for summary judgment that he and Concier were yelling at each

other, that they were not scared, and that he told Concier that they could settle the

matter offsite.

Johnson further claimed that Angela Samanie (“Samanie”), his supervisor,

jumped between the two men to keep them apart. Samanie later testified in her

deposition that she instructed Concier to unload the truck after confirming with him

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Originally Johnson’s petition also included a claim for employment discrimination.
After Cabot filed a peremptory exception of no cause of action seeking dismissal of Johnson’s
employment discrimination claim for failure to allege discriminatory action against Johnson,
Johnson voluntarily dismissed his employment discrimination claim.

that he felt comfortable doing so. According to Johnson, two other co-workers,

Linda Smith (“Smith”) and Ken Naquin (“Naquin”) witnessed the incident.

On June 9, 2017, Johnson reported the incident at a daily safety meeting when

his co-workers were present. Also in attendance at the safety meeting were Hugh

Junca (“Junca”), another supervisor, and Linda Peloquin (“Peloquin”), the

warehouse human resources manager.

Junca investigated the incident. This investigation resulted in the issuance of

a “Documented Verbal Warning” (“the letter”) to Johnson in which he found that

Johnson’s conduct in the incident violated Cabot’s workplace policies. Junca read

the letter to Johnson privately in the presence of Peloquin and Brian Mitchell,

Johnson’s union representative. The letter states, in pertinent part:

During the course of the investigation, witnesses stated that you were
yelling at both Lloyd and the Action Box driver who delivered the
cardboard. This was due to the fact that you wanted the cardboard to
be returned. You admitted and it was witnessed that you challenged
Lloyd to take the argument outside, and said “. . . do you think you are
scaring somebody boy?” Your behavior in this instance does not
represent the behavior we expect of a Cabot employee. It goes against
our Code of Business Ethics and Values. Under the section titled
“Responsibility to Each Other” and “Freedom From Harassment and
Workplace Violence”:

As a Cabot employee you are entitled to work in an environment that is
free from intimidation, harassment and violence. Verbal or physical
conduct by an employee that threatens or harasses another or disrupts
another’s work performance or creates an intimidating or offensive
work environment will not be tolerated. You are encouraged to speak
up when a co-worker’s conduct or the conduct of an employee of
another company makes you or others uncomfortable.

You have been trained on this standard.

Corrective Action:

As a result of your behavior you are receiving this documented verbal
discipline and will be placed in your personnel file. Any further
violations of company standards, policies or procedures will result in
progressive discipline up to and including termination of employment.
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On May 25, 2018, Johnson, a thirty-year employee of Cabot, who remains

employed as a warehouse technician, filed a defamation suit against Cabot. In an

amending petition, Johnson alleged that Junca’s investigation of the incident failed

to consider the statements of Smith and Naquin, both of whom allegedly witnessed

the incident and identified Concier as the aggressor. In addition, Johnson further

alleged that Cabot “through its agents and/or representatives, verbally stated, and

wrote and published, in a Letter of Reprimand, that Johnson was a threat to its ability

to maintain a work environment free from intimidation, harassment and violence.”

On June 10, 2020, Cabot filed a motion for summary judgment seeking

dismissal of Johnson’s defamation claim. Johnson submitted an opposition to

Cabot’s motion. After hearing oral argument and taking the matter under

advisement, the trial court issued written reasons which state, in pertinent part:

Although Mr. Johnson cannot show defamatory words are
contained in the verbal warning, he claims, instead, the words have
defamatory meaning. Mr. Johnson admitted he has no evidence the
documented warning was shared with anyone other that the individuals
present in the meeting where it was presented. To prove publication,
plaintiff must show that the warning was shown to Tim Hebert[, a co-
worker]. He admitted in his deposition that he does not know what Tim
Hebert was told.

...
The letter of reprimand contains statements that are inaccurate.
As a result of the letter of reprimand, Johnson believes his reputation
has been damaged; that he is considered a threat to co-workers; and that
co-workers who know about the letter can use the information to
threaten him or his job. Although Mr. Johnson admits he did what the
warning says he did, he must prove the write-up itself was false.
Submitted in connection with the summary judgment are the statements
of various co-workers which appear to disagree with the stated
conclusion in the write-up There is no evidence that the statements
were considered or disregarded in the investigation.

The Court finds that factual determinations are necessary as to
whether the reprimand contains words that have defamatory meaning;
if the reprimand contains falsity, if any, and malice, if any, by Cabot or
its employees conducting the investigation; and any injury to Terry
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Johnson. These factual determinations are such that reasonable persons
could disagree. The Court finds that summary judgment is not
appropriate.

On November 20, 2020, the trial court signed a judgment denying the motion for

summary judgment.2

Cabot filed a notice of intent to seek supervisory writs. Johnson filed an

opposition brief. Cabot filed a reply brief. And we granted Johnson’s request to file

a sur-reply brief. Thereafter, we granted Cabot’s writ application and heard oral

argument.

DISCUSSION

In Johnson v. Purpera, 20-1175, pp. 6-7 (La. 5/13/21), --- So.3d ---, ---, our

supreme court recently stated:

This case comes before the court via a motion for summary
judgment. As a result, our review is de novo, using the same criteria
that govern the district court’s consideration of whether summary
judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge, 05-
1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686. Pursuant to La. C.C.P.
art. 966(A)(3), a court must grant a motion for summary judgment “if
the motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is entitled to
judgment as a matter of law.” Notably, while the burden of proof
remains with the movant, if, as here, the movant will not bear the
burden of proof at trial of the matter, the movant’s burden on the
summary judgment motion does not require him to negate all essential
elements of the adverse party’s claim, but rather to point out to the court
that there is an absence of factual support for one or more elements
essential to the adverse party’s claim; thereafter, the burden is on the
adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

The motion for summary judgment before the court arises out of
plaintiff’s claim for defamation. Emanating from La. C.C. art. 2315,
defamation is a tort involving the invasion of a person’s interest in his
or her reputation and good name. Kennedy, 05-1418 at 4, 935 So.2d at

2
Interestingly, although the trial court specifically described outstanding factual
determinations as to whether the words of the letter were defamatory, it made no such finding
regarding the element of publication. Nonetheless, it denied Cabot’s motion for summary
judgment.
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674; Costello v. Hardy, 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129,
139. Four elements are necessary to establish a claim for defamation:
(1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or
greater) on the part of the publisher; and (4) resulting injury. Id.;
RESTATEMENT (SECOND) OF TORTS § 558 (1977). As we
explained in Costello, the fault requirement is generally referred to in
the jurisprudence as malice, actual or implied. Costello, 03-1146 at 12,
864 So.2d at 139.

Given the foregoing, in order to prevail on a defamation claim, a
plaintiff must prove “ ‘that the defendant, with actual malice or other
fault, published a false statement with defamatory words which caused
plaintiff damages.’ ” Id. (quoting Trentecosta v. Beck, 96-2388, p. 10
(La. 10/21/97), 703 So.2d 552, 559). If even one of the required
elements of the tort is lacking, the claim fails. Id.

Because of their chilling effect on the exercise of free speech,
defamation actions traditionally have been found particularly
appropriate for resolution by summary judgment. “Summary
adjudication, we have recognized, is a useful procedural tool and an
effective screening device for avoiding the unnecessary harassment of
defendants by unmeritorious actions which threaten the free exercise of
rights of speech and press.” Kennedy, 05-1418 at 25, 935 So.2d at 686.

Consistent with these principles, we will conduct a de novo review of Cabot’s

motion for summary judgment.

In the present case, Cabot, among other contentions, asserts that Johnson will

not be able to establish two essential elements of his defamation claim: (1)

defamatory words; and (2) an unprivileged publication to a third-party. After

carefully reviewing the record, the trial court’s reasons for judgment, and the

arguments made, we find it only necessary to address the issue of publication as we

find it dispositive of this matter.

An unprivileged communication is one that is not privileged. In Kennedy, 935

So.2d at 681-82, the supreme court explained:

In Louisiana, privilege is a defense to a defamation action.
Costello, 03-1146 at 15, 864 So.2d at 141.... Privileged
communications are divided into two general classes: (1) absolute; and
(2) conditional or qualified. Madison v. Bolton, 234 La. 997, 102 So.2d
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433, 439 n. 7 (1958). An absolute privilege exists in a limited number
of situations, such as statements by judges and legislators in judicial
and legislative proceedings. Id. A conditional or qualified privilege
arises in a broader number of instances. Id. .... It is impossible to
reduce the scope of a conditional or qualified privilege to any precise
formula. Id. Nevertheless, the elements of the conditional privilege
have been described as “good faith, an interest to be upheld and a
statement limited in scope to this purpose, a proper occasion, and
publication in the proper manner and to proper parties only.” Madison,
102 So.2d at 439 n. 7. The privilege, it has been held, “arises from the
social necessity of permitting full and unrestricted communication
concerning a matter in which the parties have an interest or duty,
without inhibiting free communication in such instances by the fear that
the communicating party will be held liable in damages if the good faith
communication later turns out to be inaccurate.” Toomer [v. Breaux],
146 So.2d [723] at 725 [(La.App. 3 Cir. 1962)].

In Costello, 864 So.2d at 142 n.13, the supreme court explained that a privileged

communication is an affirmative defense that “raises a new matter which, assuming

the allegations in the petition to be true, constitutes a defense to the defamation

action and will have the effect of defeating the defamation claim.” See also Sullivan

v. Malta Park, 14-0823, p. 11 (La.App. 4 Cir. 12/10/14), 156 So.3d 1200, 1207

(citing La.Code Civ.P. art. 1005 and Costello, p. 16, 864 So.2d at 142 n.13) wherein

it was held that “[a] qualified privilege is an affirmative defense to a cause of action

for defamation, which must be specially pled in a defendant’s answer.”); Alexander

v. Blue Williams, L.L.P., 18-0776, 2019 WL302078, (La.App. 4 Cir. 1/23/19), –––

So.3d ––––, ––––, writs denied, 19-0432, 19-0435, 19-0432 (La. 9/6/19), 278 So.3d

370, 372, 968.

Johnson admits in his affidavit filed in opposition to Cabot’s motion for

summary judgment that he and Concier were yelling at each other, that they were

not scared, and that he told Concier that they could settle the matter offsite.

Nevertheless, Johnson contends the investigation that Junca undertook was faulty

because it failed to consider the statements of Naquin and Smith, who, he contends,

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painted Concier as the aggressor. As a result, he argues that the statements made in

the disciplinary letter diminish his reputation and cast him in a harsh light with his

fellow employees. Nonetheless, accepting that as true for purposes of argument, we

observe that it was Johnson’s additional burden to present evidence that he would

be able to meet the burden of proving publication, an essential element of his cause

of action, at a trial on the merits.

Cabot asserts that any communication regarding Johnson was in the scope of

his employment and within the chain of command. Intra-corporate statements are

not considered published to satisfy the publication requirement of defamation.

Brunet v. Fullmer, 00-644 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240. Moreover, as

observed in Doe v. Grant, 01-0175, p. 8 (La.App. 4 Cir. 1/29/03), 839 So.2d 408,

416, writ denied, 03-0604 (La. 5/2/03), 842 So.2d 1102 (quoting Bell v. Rogers,

29,757, p. 10 (La.App. 2 Cir. 8/20/97), 698 So.2d 749, 756) “statements between

employees, made within the course and scope of their employment, are not

statements communicated or publicized to third persons so as to constitute a

publication.”

In the present case, the trial court acknowledged, and Johnson admits, that he

has no evidence his documented verbal letter was shared with anyone other than

those individuals present in the closed-door meeting where he was presented the

letter. Instead, Johnson argues that Tim Hebert, a co-worker, was told about the

verbal warning.

In its written reasons for judgment, the trial court stated, “To prove

publication, plaintiff must show that the warning was shown to Tim Hebert[, a co-

worker]. He admitted in his deposition that he does not know what Tim Hebert was

told.” Moreover, we have combed the record and observe that Hebert was either not
7

deposed or his deposition was not admitted into evidence in opposition to Cabot’s

motion for summary judgment. In addition, Johnson further stated in his deposition

that no one else said anything to him about the write-up. Similarly, in Smith’s

deposition, one that Johnson relies upon, she stated that she had no idea that Hebert

knew whether or not Johnson was going to get a write-up.

After thoroughly examining the record, our de novo review shows there can

be no finding of defamation because the privileged communication does not

constitute a publication of defamatory words and no other evidence of publication

was submitted. It is evident that Johnson has failed to carry his burden of

establishing publication, a necessary element in a defamation cause of action.

Therefore, we find the trial court erred when it failed to grant Cabot’s motion for

summary judgment.

DISPOSITION

For the foregoing reasons, we grant and make peremptory the writ application

filed by Cabot. The judgment of the trial court is reversed. Summary judgment is

granted in favor of Cabot Corporation and against Terry Johnson, dismissing Terry

Johnson’s petition for damages against Cabot Corporation with prejudice. Costs of

the trial court and this appeal are assessed to Terry Johnson.

WRIT GRANTED AND MADE PEREMPTORY.

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