N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

ANGELA C UM M INGS,

Pla i ntiff-Appe lla

nt,
v. VALLEY HEALTH SYSTEM , LLC , DB A De se rt Springs Hospita l; a nd R AEJOHNE FOSTER ,

De fe nda n ts-Appe lle e s. No. 16-15369 D.C . No. 2:13-c v-00479-APG-GW F
M EM O R ANDUM *

Appe a l from

the Unite d

Sta t e s Distric t C ourt for the Distric t of Ne v a da Andre w P. Gordon, Distric t Judge , Pre siding Argue d a nd Subm itte d June 5, 2017 Pa sa de n a , C a l ifornia B e fore : GR

AB E R , SAC K, ** a nd M UR GUIA, C irc uit Judge s. 

# F IL ED
AUG 11 2017 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.

** The Honora

ble R obe rt D. Sa c k , Unite d Sta te s C irc uit Judge for the C ourt of Appe a ls for the Se c ond C irc uit, sitting by de signa tion.Ange la C um m i ngs worke d a s a

te l e m e try m onitor te c hnic ia n a t Va lle y He a lth Sy ste m , LLC dba

De se rt Springs Hospita

l (“ DSH” ) from

2005 until 2013. Throughout he r te nure a t DSH, C um m ings ha d a

hostile re la tionship with one of he r c o-worke rs, R a e

johne Foste r. In M a y 2012 a n d June 2012, C um

m ings c om

pla i ne d to DSH tha

t Foste r wa s ha ra ssing he r in the workpla c e ; DSH inve stiga te d but did not find suffic ie n t
e vide nc e to ta

ke a c tion. In July

2012, C um

m ings file d c ha

rge s with the Ne va da Equa l R ights C om

m ission a nd the Equa l Em

ploy m e nt Opportunity

C o m m ission,
c om pla i ning of ra c e a nd ge nde r disc rim i na t ion. On De c e m be r 18, 2012, C um

m ings

m e t with DSH’ s ne w Hum a n R e sourc e s Dire c tor to c om pla in a bout disc rim ina tion. On De c e m

be r 21, 2012, DSH issue d thre e c orre c tive a c tions a ga inst C um m ings for
se ve ra l infra c tions she ha d c om m itte d in the prior m onth. The se thre e c orre c tive
a c tions, c om

bine d with two issue d e a rlie r in the y e a r, pla c e d C um m ings one viola tion a wa y from te rm i na tion unde r DSH’ s progre ssive disc ipline polic y . The fina l viola

tion oc c urre d on Ja

nua ry 11, 2013, whe n

DSH suspe nde d C um m ings pe nding a

n inve stiga

tion into c ha

rge s tha t she ha d be e n wa t c hing a vide o on the c o m

pute r inste a d of m onitoring the te le m e try unit. On Ja

nua ry 12, 2013, the DSH se c urity

offic e re c e ive d a

re port from

a n e m p loy e e na m e d “ Dia

ne ” in the te l e m e try

unit, who sta

te d tha t she ha d he a rd from

“ s e ve ra l e m

ploy e e s” tha

t
2C um

m ings thre a te ne d to “ shoot up the pla c e ” if she we re te rm i na te d . Donna Adkins, a DSH supe rvisor, re sponde d to this re port by inform ing DSH e m

ploy e e s tha t the se c urity

c ode to the door would be c ha nge d a s a pre c a ution a ga inst C um m ings’ purporte d thre a t. Adkins the n initia te d a n inve stiga

tion a nd de t e rm ine d tha t the re porte d thre a t wa s nothing m ore tha n a fa lse rum o r, but she c ould not ide n tify the sourc e of the rum or. Anothe r DSH e m ploy e e , Sy nthia

Arm strong,
c he c ke d the shift sc h e dule for the te le m e try unit on Ja

nua ry 12, 2013, a

nd de te rm i ne d tha

t Foste r wa s the othe r te c hnic ia n working with Dia

ne tha t da y . On Ja nua ry 30, 2013, DSH he ld a

m e e ting with C um

m ings to disc uss he r future with the c om

pa ny , but C um

m i ngs storm e d out of the m e e t ing be fore a
re solution c ould be re a c he d. DSH te rm i na te d C um m i ngs’ e m

ploy m e nt e ffe c tive Fe brua ry 20, 2013. C um

m ings file d suit a ga inst DSH, a lle ging de fa m a tion,
re ta lia tion, a n d disc h a rge i n viola

tion of public polic y . She a lso sue d Foste r,
a lle ging de fa m a tion a

nd inte ntiona l inte rfe re nc e with prospe c tive e c onom ic
a dva nta ge . The distric t c ourt gra nte d sum m a ry judgm e nt in fa

vor of DSH a

nd Foste r on a ll c l a im s. W e re vie w the distric t c ourt’ s gra nt of sum m a ry judgm e nt de novo, Entre

pre ne ur Me d

ia, Inc . v . Smith , 279 F.3d 1135, 1139–40 (9th C ir. 2002). W e a ffirm

in pa rt, re ve rse in pa

rt, a nd re m a nd.

31. C um m ings’ de fa m a tion c la im

a ga inst DSH fa ils be c a

use Adkins’ sta te m e nt to DSH e m

ploy e e s a bout C um m ings’ a lle ge d thre a t wa s privile ge d. The intra c o rpora te c om

m unic a t ion privile ge a

pplie s to a

sta te m e nt involving “

the
re gula r c ourse of the c orpora tion’ s busine ss,” if the sta te m e nt is m a de in good fa ith to a pe rson with a

n inte re st in the subje c t

m a t te r of the sta

te m e nt. Simpson v . Mars, Inc

. , 929 P.2d 966, 968 (Ne v. 1997). He re , Adkins re c e ive d a ge nuine re p ort a

bout C um m ings’ thre a t from t

he DSH se c urity

offic e , a nd she took pre c a

utions to prote c t DSH e m

ploy e e s by

inform i ng the m

a bout the thre a t. No re a sona b le jury
c ould find tha

t Adkins la c ke d a

good-fa i th be lie f in the sta te m e nt or a c te d with

m a lic e . 2. C um

m ings a lle ge s tha

t DSH re ta lia

te d a ga i nst he r in viola

tion of Title VII, 42 U.S.C . § 1981, a

nd Ne va da

R e vise d Sta tute s § 613.330. Ea c h of the se sta tute s is a na ly z e d using the Mc

Donne ll Douglas fra m e work. Se e Daw son v . Ente k Int’l , 630 F.3d 928, 936 (9th C ir. 2011) (Title VII re t a lia tion c la im s a

re subje c t to the Mc

Donne l l Douglas fra m e work); Surre ll v . C al. W a t e r Se r v . C o. , 518 F.3d 1097, 1104 (9th C ir. 2008) (Se c tion 1981 c la im s a re subje c t to the sa

m e sta nda rd a s Title VII c la im s); Ape c e c he v . W hite Pine C t y ., 615 P.2d 975, 977 (Ne v. 1980) (Ne v. R e v. Sta t. § 613.330 c la i m s a re subje c t to the sa

m e sta nda rd a s Title VII).

4Eve n a ssum ing tha t C um m ings ha s e s ta

blishe d a prim a fa c ie c a s e of
re ta lia tion a t ste p one of the Mc

Donne ll Douglas a na ly sis, DSH ha s m e t its burde n
a t ste p two of the M

c Donne l l Douglas fra m e work by

a rtic ula ting a

le gitim a te , nonre ta lia tory re a son for te rm ina t ing C um m ings’ e m

ploy m e nt. DSH fire d

C u m m ings in a c c orda

nc e with its progre ssive disc ipline polic y a fte r she ha d

a c c rue d six
c orre c tive a c tions. Se e Unt v . Ae rospac e C orp. , 765 F.2d 1440, 1446 (9th C ir. 1985) (“ An e m

ploy e e is not prote c te d by Title VII whe n he viola

te s le gitim a te
c om pa ny rule s, knowingly

disobe y s c o m

pa ny orde rs, disrupts the

work
e nvironm e nt of his e m

ploy e r, or willfully

inte rfe re s with the a tta inm e nt of the
e m ploy e r’ s goa ls.” ). C um m ings ha s not shown pre te xt, a s re quire d a t ste p thre e of the M c Donne ll Douglas a na ly s is. De spite the c lose te m pora l proxim ity

be twe e n C um

m ings’ disc rim ina tion c om

p l a int to DSH on De c e m

be r 18, 2012, a

n d the thre e c orre c tive
a c tions DSH issue d on De c e m b e r 21, 2012, the

surrounding c irc um s ta

nc e s do not show pre te xt. Se e C

oszalte r v . C ity of Sale m , 320 F.3d 968, 978 (9th C ir. 2003) (“ [T] he re is no se t tim e within whic h a c ts ne c e ssa rily support a

n infe re nc e of
re ta lia tion. . . . [R e ta lia

t ion] m ust be de c i de d in the light of the tim ing a nd the surrounding c irc um sta

nc e s.” ). First, e a c h of the c orre c tive a c tions tha t DSH issue d to C um m ings wa s ba se d on a

n e sta blishe d c o m

pa ny polic y or pra c tic e . Ne xt, DSH

5wa s re sponsive to C um m i ngs’ c om

pla ints of ha

ra ssm e nt a

nd provide d C um

m ings with a sum m a ry of its inve stiga

tions into he

r c la im s. Fina lly , DSH first disc ove re d C um m ings’ vide o m isc onduc t afte r C um m i ngs ha d c om

pla ine d a b out disc rim ina tion; this ne

w, inte rve ning disc ove ry unde rm ine s the c a usa l infe re nc e . Se e C urle y v . C ity of N

. Las Ve gas , 772 F.3d 629, 631 (9th C ir. 2014) (“ [N] e w inform a t ion re ve a le d

by [a n inte rve ning] inve stiga t ion de fe a ts a

ny c a u sa l infe re nc e tha t m i ght othe rwise follow from the te m pora l proxim ity

be t we e n . . . prote c te d
a c tivity a nd . . . te rm ina tion.” ). 3. C um

m ings’ c la im a lle ging disc ha rge in viola

tion of public polic y
a ga inst DSH a l so fa ils be c a use it is pre m i se d on the sa m e le ga l the o ry a nd fa c ts a s he r re ta lia tion c la im

. 4. C um

m ings’ c la im of inte n tiona l inte rfe re nc e with prospe c tive
e c onom ic a dva

nta ge a ga inst Foste r fa ils be c a u se C um m ings ha s not shown “ a c tua l ha rm . . . a s a re sult of the de fe n da

nt’ s c onduc t .” Le av itt v . Le isure Sports Inc o rporation , 734 P.2d 1221, 1225 (Ne v. 1987). A de fe nda

nt is only lia ble to a pla i ntiff “ for the pe c unia

ry ha rm re sulting from

loss of the be ne fits of the [e c o nom ic ] re la t ion.” R e sta te m e nt (Se c ond) of Torts § 766B (1979). The re is no
e vide nc e in the re c ord showing tha t C u m m ings’ e c onom ic re la tionship with DSH

6wa s se ve re d a s a re s ult of Foste r’ s rum or; ra the r, DSH fire d C um m ings be c a

use of the c orre c tive a c tions she re c e ive d in 2012 a nd the inve stiga

tion re ve a ling tha

t she ha d be e n wa t c hing a

vide o during he r shift m onitoring the te le m e try unit. 5. Fina lly , C um

m ings’ de fa m a tion c la im

a ga inst Foste r survive s. To
e sta blish a de fa m a tion c la im , a pla intiff m

ust de m onstra

te (1) a fa lse a nd de fa m a t ory

sta te m e nt of fa c t by

the de fe nda

nt; (2) a n unprivile ge d public a tion to a third pe rson; (3) fa

ult, a m ounting to a

t le a st ne glige nc e ; a

nd (4) a c tua l or pre sum e d da m a ge s. 1 P ope v . Mote l 6 , 114 P.3d 277, 282 (Ne v. 2005). The m a in issue on
a ppe a l is whe the r a tria

ble issue of fa c t e x ists tha t Foste r wa s the sourc e of the de fa m a t ory

sta te m e nt a bout C um m ings’ thre a t to “ shoot up the pla c e .” Dra wing a ll infe re nc e s in C um m ings’ fa vor, a s we m

ust a t the sum m a ry judgm e nt sta ge , we hold tha t the re is e nough c irc um sta ntia l e vide n c e from

whic h a
re a s ona ble jury c ould c onc lude tha

t Foste r sta

rte d the rum or. Diaz v

. Eagle Produc e Ltd. P’ship , 521 F.3d 1201, 1207 (9th C ir. 2008) (“ Sum m a ry judgm e nt is

1 W hile a la c k of a c tua l da

m a g e s de fe a t s C um

m ings’ inte ntiona l inte rfe re nc e c la im , it is not fa

ta l to he r de fa m a tion c la im be c a use da m a ge s a

re pre sum e d

whe re a pla intiff a lle ge s sla

n de r pe r se . Branda v . Sanford , 637 P.2d 1223, 1225 (Ne v. 1981). Unde r Ne va da

la w, one c a te gory

of sla nde r pe r se inc lude s sta

te m e nts “ tha t the p la intiff c om

m itte d a c rim e .” N

e v . Inde p. Broad. C

o rp. v . Alle n , 664 P.2d 337, 341 (Ne v. 1983). He re , the a lle ge d de fa m a tory sta te m e n t— tha t C um m ings ha d thre a te ne d to “ shoot up the pla c e ”

— e sse ntia lly

a c c use s C um

m i ngs of m a

k ing a c rim ina l thre a t a

nd, the re fore , c onstitute s sla nde r pe r se . 7ina

p propria te if re a sona

ble j urors, dra

wing a ll infe re nc e s in fa

vor of the
nonm o ving pa

rty , c ould re turn a

ve rdic t in the nonm oving pa rty ’ s fa vor.” ). First, the D SH se c urity

re port indic a t e d tha

t the thre a t wa s re porte d by a n e m ploy e e
na m e d “ Dia

ne ” in the te l e m e try

unit. Ne x t, Arm strong te stifie d tha t on the da

y of the t hre a t re port, Foste r a nd Dia

ne worke d toge the r in the te le m e try room , a c c ording to the

shift sc he dule . Te le m e t

ry te c hnic ia ns work in pa irs, m e a ning tha t the o nly two e m ploy e e s in the te le m e try

room tha t da y we re Foste r a nd Dia

ne . Fina lly , a s Foste r he rse lf a c knowle dge d in de position te stim o ny , she a nd C um m ings ha ve ha d a c o nte ntious history , a

nd Foste r ha s pre viously

re porte d C um m ings for se ve ra l viola

tions of c o m

pa ny polic y . W e a lso c onc lude tha t Foste r is not c ove re d by the intra c orpora te
c om m unic a tion privile ge . “ [P] rivile ge s a re de fe nse s to a

de fa m a tion c la im

a nd, the re fore , the de fe nda

nt ha s the initia l burde n of prope rly a lle ging the privile ge a nd the n of proving the a lle ga t ions a t tria l.” Lubin v . K

unin , 17 P.3d 422, 427 (Ne v. 2001) (pe r c uria m ). Foste r ha s not m e t this burde n be c a use the re is no e v ide nc e tha t she m a de the sta

te m e n t in good fa ith. Se e C irc us C i rc us Hote ls, Inc . v . W ithe rspoon , 657 P.2d 101, 105 (Ne v. 1983) (pe r c uria m ) (“ A qua lifie d or
c onditiona l privile ge e xists whe re a de fa m a tory

sta t e m e nt is made

in good faith

. . . .” (e m pha sis a d d e d)).
8This is not to sa y t ha t a ll c a se s involving rum ors swirling a

round the workpla c e will survive

to se e a de fa m a tion tria l . Abse nt dire c t e vide n c e , a pla intiff

m ust provide m ore tha

n m e re spe c ula tion or suspic ion to c re a te a tria b le issue of fa c t tha t one of he r c o-worke rs wa s the sourc e of a de fa m a tory sta te m e nt. British Airw ay s Bd. v . Boe i ng C

o. , 585 F.2d 946, 952 (9th C i r. 1978) (“ [A] jury is pe rm itte d to dra

w only those infe re nc e s of whic h the e vide nc e is re a s ona bly
susc e ptible ; it m a y

not re sort to spe c ula tion.” ). The e vide nc e he re , howe ve r, pre s e nts a unique situa

tion in whic h Foste r—

who ha rbore d the m ost a

nim us
a ga inst C um

m i ngs a nd ha s a c tive ly

ta rge te d C um

m ings in the

pa st— wa s the only othe r pe rson in a

room with Dia ne on the da

y tha t Dia ne re porte d tha

t she he a rd
a bout C um m ings’ thre a t

of viole nc e from

fe l low e m

p loy e e s. On this re c ord, we
c onc lude tha

t a tria b l e issue of fa c t e xists a s to whe the r Foste r origina te d the de fa m a t ory

sta te m e nt. The re fore , we re ve rse the distric t c ourt’ s gra nt of sum m a ry judgm e nt on the de fa m a t ion c la im

a ga inst Foste r. AFFIRM E D in par t, RE V E RSE D in par t, and RE M ANDE D . The pa rtie s sha l l be a r the ir own c osts on a ppe a l.

91

Cummings v. Valley Health System, LLC , No. 16

- 15369 Sack ,  Circuit Judge , d issenting in part : A plaintiff brings a slander per se claim against a co

- work er , and that claim is defeated on summary judgment

. On review, an appellate court holds that the claim should have survive d 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. T hat, 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. 

# FILED
AUG 11 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

(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 , track ing dozens of panels that receiv e 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 acti ons " 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 ru de, abrupt and insubordinate. " Ltr. from Beena Thomas to Jim Zolnowski (July 28, 2012), ER Vol. III at 196. I t 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.3

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), E R Vol. III a t 153. DSH investigated but was unable to substantiate th o se 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 recou nted one incident , for example, when Cummings reported Foster for watching an i nternet 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 o f the telemetry monitors

. Id. Foster4

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, a nother DSH employee, identified in the record only as " Diane, " reported to the DSH S ecurity D epartment 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 N othing in the record

— o ther than the rumors themselv es
— 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 recordatio n of Diane's statement is in a n "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.5

More than a month later, o n February 20, 2013, Cummings ' emp loyment 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 again st 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 major ity

— although not without some reluctance, as explained below

—

that " Foster is not covered by the intracorpo rate 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 evidence6

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 da mages." 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 reasonabl e 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 o n the slander per se claim , albeit on different grounds from those employed by the district court

. N o direct evidence links Foster to the al legedly defamatory statement. During her deposition, and w hile u nder oath , Foster herself denied spreading the
rum or . 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 propagation7

of the rumor identif

ied 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 ( emphas e s 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
e vidence " 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 s ecurity 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 th e 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 t hese manifold possibilities seem to me to be at least as likely as the inference drawn by the majority , in no small part8

because Diane , we are told, reported hearing the rumor from " several employees. " DSH Incident Report (Jan. 12, 2013), ER Vol. I II 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 da y . Perhaps she instead heard the rumor the day before , when Cummings was placed on investigative leave, and decide d only the next day to raise the issue

. We do not know. T he 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 t he record support s that inference

. D SH 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 th e process she saw Cummings failing to attend to the monitors

. Cummings Dec. ¶ 21, ER Vol. II at 43. Moreover, t elemetry monitor technicians were given multiple meal and restroom breaks throughout the day, during which they very likely interacted with other employees.9

Cummings Dep. at 115

- 18, ER Vol. III at 40

- 43. Thus , I do not thin k that a reasonable juror could conclude either that Diane necessarily interact ed 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

. An d 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 Foste r. Indeed, it may instead reveal that Cummings aims to pin the rumor on Foster, her workplace adversary

.10

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 publishe d 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 Ne v. 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 stat ement 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 slande r per se claim may proceed absent a modicum of direct evidence connecting the defendant to the making of the allegedly defamatory statement. * * *11

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 possibl e 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 alleged ly defamatory statement at issue i n 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 rep ortedly walked into his former workplace and shot and killed

4 If You See Something, Say Something , D EP ' T OF H OMELAND S ECURITY , https://www.dhs.gov/see

- something

- say - something (last visited July 31, 2017).12

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 you r understanding of what you saw or heard turn s out to be false , you must be prepare d 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 o nly hope not. * * *

5 See David Harris et al., Orlando Workplace Shooting: Former Employee Kills 5, Then Himself

, O RLANDO S ENTINEL (June 5, 2017), http://www.orlandosentinel.com/news/orlando

- workplace

- shooting/os

- orlando

workplace

- shooting

- 20170605

- story.html; see also Christa l Hayes & Paul Brinkmann, Orlando Shooting Is Latest in Growing Trend of Workplace Violence, Expert Says , O RLANDO S ENTINEL (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 A SS ' N OF THE B AR OF THE C ITY OF N EW Y ORK , 3 L ECTURES ON L EGAL T OPICS 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).13

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 a nother basis than it used

. Therefore and to that extent, I respectfully dissent.