NOT FOR PUBLICATION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