### The HONORABLE SUSAN WEBBER WRIGHT, United States Distric t 1 

### Judge for the Eastern District of Arkansas. ___________ No. 95-2987

___________ Jerry Freeman; David White; * Dale Lile, * * Plaintiffs - Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Bechtel Construction Company, * * Defendant - Appellee. *

___________ Submitted: February 12, 1996 Filed: July 8, 1996

___________ Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

In this diversity action, three former employees of Bechte l Construction Company ("Bechtel") appeal the dismissal of their claims for the tort of outrage and for defamation that arose out of a disciplinar y episode at their Arka nsas workplace. We accept as true the facts alleged by plaintiffs in their amended complaints for purposes of reviewing th e Rule 12(b)(6) dismissals. See Sharps v. United States Forest Serv. , 2 8 F.3d 851, 853 (8th Cir. 1994). Agree ing with the district court that the 1 complaints fail to state a claim on which relief may be granted, we affirm
.

### -2- Plaintiffs are journeymen pipefitters who at the time in questio n were work ing for Bechtel on a project at the Entergy, Inc., Nuclear On e power plant in Russellville, Arkansas. Jerry Freeman was a Mechanica l Super intendent; David White and Dale Lile were Foremen. A femal e pipefitter complained to Bechtel that Freeman had made a sexually harassin g remark to her, in the presence of White and Lile. Bechtel investigated an d advised that the matter would be dropped. Dissatisfied, the complainant rais ed the issue with Entergy. That prompted Bechtel to investigat e further, which culminated in an arbitration hearing at the job site. Afte r the hearing, Bechtel determined that Freeman had made a harassing remark which W hite and Lile failed to report. It suspended all three for fiv e days, and demoted Freeman.

Unabl e to obtain relief under the collective bargaining agreemen t betwee n Bechtel and the pipefitters' union, plaintiffs filed these tw o consolidated actions. Count One of their parallel complaints alleged the tort of outrage (intentional infliction of emotional distress). Counts Tw o and Three alleged defamation by libel and by sla nder. Prior to deposition discovery, Bechtel fi led motions to dismiss for failure to state a claim. The district court granted those motions, and plaintiffs appeal.

Count One -- Tort of Outrage. The Arkansas Supreme Court takes " a very narrow view of claims for the tort of outra ge." The conduct at issue must be "so outrageous in character, and so extreme in degree, as to g o beyond all possible bounds of decency, and to be regarded as atrocious, an d utterly intolerable i n civilized society." Ross v. Patterson , 817 S.W.2d 418, 420 (Ark. 1991). The trial court must initially determine whethe r conduct may reasonably be regarded as so outrage ous as to permit recovery. See Smith v. American Greetings Corp. , 804 S.W.2d 683, 686 (Ark. 1991)
. Review of outrage claims in employment situations is particularly strict because "an employer must be given a certain

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amount o f latitude in dealing with employees." Sterling v. Upjoh n Healthcare Servs., Inc. , 772 S.W.2d 329, 330 (Ark. 1989).
In this case, plaintiffs allege that Bechtel, after initially f inding plaintiffs innocent o f the sexual harassment complaint, then proceeded to discipline them while "entertain[ing] serious doubts about the truthfulnes s of the [complainant's] statement," knowing that "severe emotional distress would be the result." We agree with the distric t court that "Arkansas law is replete with employment cases in which conduct far more objectionable than that described in this case still was foundinsufficient to equal the tor t of outrage." See, e.g. , Smith , 804 S.W.2d at 685; Sterling , 77 2 S.W.2d at 330; Puckett v. Cook , 864 F.2d 619, 622 (8th Cir. 1989)
. Therefore, plaintiffs failed to state an outrage claim.

Count Two-- Defamation by Libel. In this count, plaintiffs allege that a "written, permanent report" of the reason for their discipline "wil l go into the file kept by [Bechtel]"; that the report contains an "obvious defamatory statement"; and that the file "is kept in a central locatio n where anyone has acce ss, not just individuals that [are] deemed necessary to further any [Bechtel] interest." We agree wi th the district court that these allegations are deficient.
In the first place, the core allegation is speculative -- a per manent repor t "will go" into permanent files at Bechtel. Second, no specifi c defamat ory statement is alleged. It is not "obvious" to us that such a report would contain a defamatory statement. For example, a report that sim ply stated that the female pipefitter complained, that Bechte l invest igated and determined the complaint was well founded, and tha t plaintiffs were disciplined based upon that determination, would contain
no st atement that is even arguably false, an essential element o f defamatio n torts. See Mitchell v. Globe Int'l Pub., Inc. , 773 F. Supp
. 1235, 1238 (W.D. Ark. 1991).

### -4- Third, plaintiffs failed to allege that the reports have in fac t been publ ished to a nonprivileged third party. Arkansas law recognizes a qualified privilege for employers and supervisory employees dealing with matters that affect their business. See Ikani v . Bennett , 682 S.W.2d 747, 749 (Ark. 1985); Dillard Dept. Stores, Inc. v. F elton , 634 S.W.2d 135, 137 (Ark. 1982). The investigation of charges of sexual harassment and th e recording of discipli ne in an employee's personnel file would fall within the scope of this privilege.

In these circumstances, unless the complaints set forth the alleged defamatory statements and identify the persons to whom they were published , Bechtel is unable "to form responsive pleadings. " Asay v. Hallmark Cards, Inc. 594 F.2d 692, 699 (8th Cir. 1979). Count Two failed in this regard and was properly dismissed.

Count Three -- Defamation by Slander. In Count Three, plaintiff s all ege that defamatory statements were made that each plaintiff made o r condoned a sexually harassing statement and was disciplined, and that thes e statements were "orally published around the whole job site and the town of Russellville." The district court dismissed this count because th e complaints "fail to s tate how [Bechtel] caused this alleged publication." We agree.

The complaints allege generally that every statement by a Bechte l employee is attributable to Bechtel under the law of agency because made in the ordinary course of business. That is, of course, a gros s exaggeration. Many statements by non-management employees, even statement s made "aro und the whole job site," are not made in the course of thei r employment. And many statements made around the job site would be entitle d to a q ualified privilege, for example, statements made in implementin g grieva nce procedures with the union. Thus, the vague publicatio n allegations in Count Three suffer from the same deficiencies as those in Count Two -- they do not identify the defamatory statements with any

### -5-

specificity, they do not identify the manner of oral publication, and they do not allege that Bechtel (that is, a Bechtel agent acting within th e scope of that agency) published the statements to a nonprivilege d recipient.

When a de famation complaint fails to state a claim, it may be error to dismiss the complaint or strike the deficient allegations without givin g pl aintiffs a chance to amend. See Asay , 594 F.2d at 699. But here , plaintiffs never requested an opportunity to amend. Rather, they requeste d
an opportunity to take numerous depositions, confirming that thei r defamation allegations were made without support ing facts in the hope that they would be permitt ed to embark upon a classic fishing expedition. The district court properly cut short that abuse of the liberal federa l pleading rules by granting Rule 12(b)(6) dismissals.
The judgment of the district court is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.