ok mr crouch i'm here today to represent a lady named stephanie warren she was a long term a ploy sixteen years working for fannie mae and during that time she had an exemplary record her managers knew that her media manager marsha peters knew that manager over that answer cox that and both of them opposed or terminations but she was defamed and that's what we're here to talk about in this appeal there was an earlier claim that was a  discriminated against that was rejected but this is bill is about term nation and the defamation so clearly she was defending there was an investigation done and was a multi page memo it was circulated by people they used that as the basis for terminating her without any prior warning signal if there was no prior warning given to my cloud on any of these topics so clearly there was a defamation the only issue really becomes is there a fact issue on the issue of qualified privilege ballpark privilege allows the employer when an accusation is made to do an investigation as an affirmative defense it requires that the employer demonstrate that the investigation was done in good faith and that the statements that were made were within the the protection of this good faith statement now to defeat a claim the ball fight privilege you have to do was false but it can also be established by feeling that it was reckless it can be established by purposes of showing that when they made the statements they made a conscious decision not to something else yes that the original defamation was this this document prepared by the investigations unit right at the document is seems problematic because it's it's my understanding that she believes she was defame because there was to perception that she was received kickbacks but the investigative report explicitly says that she has not found no evidence that she except to give her other benefits from the outside broker so the if you read the report you would know she didn't get kickbacks so how can that be defamatory towards her on the if that's the source of the defense defamation so i think the question from a defamation standpoint you can have something that is literally true in the report and yet the in the report taken as a whole creates a context that creates a false just but it's not evidence that she took kicks back and yet we are firing her because she said of favoritism to this person in a way that shows that she mismanaged our property and so the implication we didn't catch or red handed but we still shouldn't think she did it and that's why we're firing her the statement that we found no evidence of it we didn't find any evidence is actually in called the turing it the gist of the entire document that she mismanaged fannie mae i mean they they say she mismanaged our property that's part of the raised my she's fired ok it says that she didn't avoid a conflict of interest are you saying the employee gossip is also defamatory or is it just the report well i think to try and call it gossip is to try and put a label on it and make it something that an example we talk to most people is that is not is defamatory or is it only the report that's why i called the cost up if if you can give me a citation to the record where some particular person is saying something about her accepting kickbacks or giving favoritism where would that be in the record right ms ms small her friend is having conversations with the husband of a worker for a for fannie freddie mac it's the other competitor in the industry and they're talking about this group of people that are that are being assumed to set the kickbacks and the reason for that is if they hadn't taken anything of value there wouldn't have been a conflict of interest they wouldn't have been fired and everybody knows in the industry when you get fired for a conflict of conversation but that but that is the implication what ms warren found when she went to go work for other people in the industry was that people were talking about the allegation of accepting kickbacks she couldn't even get an interview with freddie mac she worked there privately years previously she knew people there people are talking is not specific enough for for a promise face a case that's what i'm trying to get something specific in the record to see if you've made your inter it certainly shows damage the reputation it may not qualify as a publication or has been authorized a couple of cases we don't accept that the report itself is a publication i'm looking for something else i'm trying to give you a chance to tell us where in the record there's a publication so we don't we don't have direct evidence of what happened in sort of behind the scenes in fannie mae machinery but we didn't know is this started with the report and we do know that what started with the report was widely disseminated in the industry we don't have much question about the record is chris is it coax or is how often it is the deposition actually in the record because all the citations to it so turning to the issue of the qualified privilege we have repeated statements about things that marsha peters knew things that marsha peters tolly investigation things that did not and the results of the report is to create a false impression then that is evidence of malice so the most damaging of these obviously that the investigator talked to marsh appears we have the investigators notes which is  thankful under current law it's hard to even bring it up a mason if you don't have these insider notes which you can't get under texas procedure but we have the investigators knows and we know marsha peters was telling her things like i don't see a problem with either jonathan's that spin out o or mr finch going in helping these other brokers we encourage people like mr finch to help other brokers even if they had some sort of an agreement between themselves where the new broker was paying some sort of a splitting the commission with mr finch there's no rule against that and then probably the most damaging one it's a little bit difficult to interpret deliberately keeping knowledge of what mr french was doing from his peter's her boss and yet in the the actual knows there's something that can be interpreted as someone told ms peters that mr french was lying under the radar or even s w stephanie warren told her mr french was trying to fly under the radar now we are in thailand i think to argue any interpretation that would be most advantageous to ms warren that is possible is the one that the courts could use for summary judgment purposes if there is an admission in the notes of the investigator that ms warren actually told her boss that mr fennis was doing these things which nobody understood to be wrong at the time then we have a clear and intentional false stood in the terminations memo so i think this is a situation where the the court has overreached that we have  fact issue on the issue of qualified immunity we've got a woman who her supervisor say was an honest woman hard worker had never been counseled on any of these alleged policies had never been written up as far as we know both of the supervising two immediate supervisors said they would have imposed opposed to her being terminated but neither one was even half and so it's just an incredible injustice reading that the false impression that she was mismanaging assets that's right on the very front of the of this terminations memo and yet there's there's no evidence of that there's no evidence that that as a result of any of her actions that these properties were in any gea got her name correctly went to mr fyshe precisely because he was such an expert there is no evidence that any favoritism at all was shown ms de gea in terms of her being selected she apparently the process whereby you find an ad a new oreo broker is the st place you go look as fannie mae has a list there was one person on the list in his duty it was already on the list so that's where she was going to start making that decision who's the new broker to add the fact that she got the same answer by calling up mr finch and asking for a recommendation buy it nationally known broker it just icing on the cake for doing what she would have done already in terms of approaching this woman and asking her to become an oreo broker for fannie mae there's no evidence that she did a poor job in fact the evidence is exactly the opposite that she did next month job managing the properties there's no evidence my client was ever trained that if there was some business relationship between the two that it was somehow improper in fact the evidence is that there was no training on the subject and only after there was training did this even become an issue and during the time frame when guidance was given we've established in the record that ms peters was made aware that mr finch was assisting on the property so we believe we have clear evidence that a jury should answer the question of whether or not  truth or as we properly proved it up as as testimony on reputation for approval and secondly when good faith is a requirement as it is of the qualified in the community you have to show good faith in their investigation then testimony that a person in a in the same department with a similar job title using the same investigators received what she thought was an intentionally false report from this chancy she says i gave her evidence that showed her statements in that report were false and she doesn't even mention most of them so we have specific acts under the rule i think is four or five b where good faith is an affirmative element of the affirmative defense of qualified privilege we are entitled to use reputation evidence we are entitled to use the civic acts to show that this investigator was not using good faith that she was in fact in the  my name is madonna when i represent fannie mae they may has fully briefed every issue raised by miss warren in her appeal in some she raises conclusory statements speculation and substantiated surgeons and hearsay borne has never been able to articulate with specific evidence including time in place precisely how any defamatory statement is to include certain helpful information to her in the report just for purposes of creating a factor but actual malice isn't an incompetent investigation or it's not a nd guessing the can't nd guess what went into the report actual malice is not negligence it's not even evidence of animosity miss warren must show and a cunt of probable fault city and that could be shown by presenting evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of this publication there is no showing conclusions based on its conclusions the company directed terminations their report is in the record at nine hundred and ninety one to two thousand what's important here and what goes to your point your honor is that warrant points to no evidence that the investigators doubted the truth of the evidence they assembled in the conclusions they reached with respect to the notes that that mr crouch talked about notes are in the record there is nothing about the notes that at the time of the investigation would have indicated that the someone that mr peters was talking about was stephanie warren in fact miss peters her manager said she didn't remember but if she did say that it was probably somebody else that she was talking to about mr finch and all it says it's that someone told her that he was under the radar doesn't say anything about whether ms warren was working with him to conceal it from her manager and that's very important to talk about what miss peters would have done but what in fact was part of the findings of the report was that m miss warren hid information from her manager and did not tell her manager that would be yes your honor if you exclude information the exclusion itself would have to create this slant of false impression and the keys that mr crouch has cited in his br turner comes from the supreme court that's a pretty outrageous case it's a reporter who reported on a lawyer and indicating that the lawyer had something to do with the fraud of his client but in that case the lawyer did not win because at the time of the news articles he could show no article and no evidence that the report or believed that what he was saying wasn't true that it was a calculated false hood and there's nothing that ms warren has pointed to that shows that anything in the report was a calculated falshood was excluded for purposes of making it slanted and certainly nothing at the time of the investigation that the that the investigator or the report that would indicate that it had it was intended to be faults this make it look like she was lying from her boss her own evidence her own statements made it look like she was completely instead of seeing as part of the investigative effort to be supportive of the investigation but to make it then became like this is on her own because she thinks she did something wrong the inference is very different squiggles maybe or something they argue that i don't know the document is in the record it doesn't say s w and the district court judge found fault with the fact that it was repeated again this was looked at in detail by the district court and it was raised in the appeal of the of the discrimination case when it st came before the circuit and not only did the the lower court judge exclude paragraph twenty two which is where ms warren talks about how she might of been the one who said something to the manager it found that the notes themselves sent someone and when it came up to this this caught the court affirm the summary judgment on the discrimination case they're trying to recycle the same notes in the same argument to say that that indicates some sort of the report did not amount to pretext in the discrimination case and pretext not finding pretext it's a heavier burden for miss warren to recycle and have this quote we look at all those facts to find the heavier burden of actual malice you want to talk of publication excess of publication the publication of your publication is what ms warren has to prove one of the things that she has to prove to overcome the qualified privilege anyway received an allegation it investigated it analyze the information it came to conclusions and it distributed the the report to people with a business need to know in the interest if it sent it to h up people to respond as management chain and other relevant business units weren't points to no evidence that anyone who fannie mae informed about the findings of its internal investigation communicated the information to persons not reasonably interested in the subject matter and she has shown nothing that would evidence republication or that republication of the report was reasonably foreseeable by fannie mae this is what that unit does when it gets allegations it looks into them in the head of that unit lesley arrington in her deposition said that in addition to having confidential on each page inappropriate disclosure  that conduct does not take fannie mae outside the scope of its qualified privilege with respect to all the individual statements she alleges ms warren has failed to show that the statements made at all were made in the course and scope of the person random people not identified without specific time place who are saying exactly the opposite of what was in the report so if they in fact had the report they would know it is it said that she didn't take kickbacks or this same declaration another person who was terminated in these kind of cases very similar set of facts different manager different outside broker and lynette sanders that case came up to the judge in the u s district court and then came to this court they tried to use that same declaration to to do the same thing in that case that was excluded by the trial judge and it was excluded in affirming the summary judgment the declaration contains conclusory statements by mr jefferson while she worked at fannie mae at the same time she had a different job she raised complaints that were not complaints made against her there's nothing specific about what she says other than conclusory remarks and she also includes in it hearsay and double hearsay she talks about a woman information was in the scope and course of those employees and jo and no i don't believe so because you know in that summary judgment evidence now you can put in things that could be proven up even if it's not technically appropriate anymore that they may now allow you to you can put in summary judgment evidence that could if it need some level where it used to have to be perfect it don't longer does but it is warren's burden to do that i'm just  so with regard to this page from the notes i think this this is our best evidence showing malice in the sense that the investigator knew something that could be absolutely critical and yet didn't put it in the report so one of the interesting things the investigator is clearly talking about mr finch a reference to stephanie warren in the volume bottom bullet point that appears to show she refers to stephanie warren with an s w notation the page immediately preceding this in the record there's another apparent reference to stephanie and what was said is r f mr finch was trying to fly under the radar that would actually make quite a lot of sense and the reason i say that is the trying to fly under the radar that's language taken right out of the e mail that they use as a basis for terminations earlier in that same e mail mr finch said what we go until is peter's about that just so she's not blindsided miss peters didn't think anybody else mentioned this try to fly under the radar other than the possibility of my client she said she said she didn't get it from mr finch there were thirty three people or two people on that e mail there was mr fanchon my client and if she heard it from someone and she didn't hear from mr fancher there's a strong possibility she heard it from my client and that means my client told her mr finch is involved with these properties and that is a critical fact that would undermine the entire implication of the memo that my client was hiding information in an even miss peter acknowledges within a month after when all of a sudden fannie mae came down with guidance on this prior to this there was no guys there were no rules against splitting fees there were no rules against talking with brokers fannie mae had actually put together a video of mr spinet zero showing a property in maryland where he was not licensed so what was she to think that there's something improper mr david box a vice president is actually mr spinet oh clear this  to think that anything was going wrong but nevertheless this document indicates she talked to her manager about it and maybe they don't remember because it wasn't a big deal and tell all of a sudden in august they got  some direction on it and within a month of getting direction on it ms peters acknowledges that she knew that mr finch was involved with management of those properties so i submit to you that this is a fact issue this is something the jury should be allowed to decide whether or not fannie mae has met its burden in establishing by privilege whether or not as a fact issue ms warren as set forth evidence to to show that there were substantial emissions from this disk report that set in motion all the subsequent defamation even if mr jefferson's testimony is not specific enough to establish a publication clearly is relevant evidence in the context of a defamation case because it shows that these statements which originated with a substantially false internal investigations report the damage to my client's reputation was all across the community people were talking about it you know real estate agents they talk they network that's just what they do it was everywhere and she couldn't get a job sixteen years she worked there exemplary record she worked at fre before that exemplary record five years she had people over there that she knew she couldn't even get a return phone call so i can trust this to you i hope that you will give my client her day in court thank you