1The Hon. William Matthew Byrne, Jr., United States District Judge for the

Central District of California, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1131NE

_____________

Michael Malone, *

*

Appellant, *

* On Appeal from the United

v. * States District Court

* for the District of

* Nebraska.

Eaton Corporation, *

*

Appellee. *

___________

Submitted: June 14, 1999

Filed: August 11, 1999

___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1 District

Judge.

___________

RICHARD S. ARNOLD, Circuit Judge.

Michael Malone brought this suit under Title VII, 42 U.S.C. § 2000e et seq.,

Neb. Rev. Stat. § 48-1101 and § 20-148, and Nebraska common law against his former

employer, Eaton Corporation, alleging he was discriminated against because of his sex,
2The Hon. Richard G. Kopf, United States District Judge for the District of

Nebraska.

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and was defamed after his termination. The District Court2 granted Eaton summary

judgment because Malone failed to produce sufficient evidence to rebut Eaton's valid

business reason for the termination, and because Malone failed to show that Eaton

acted with malice in describing the reason for the termination. We affirm. 

I.

In reviewing a grant of summary judgment, we apply the same standard used by

the District Court: whether there is a genuine issue of material fact, and whether the

moving party is entitled to a judgment as a matter of law. We briefly outline the facts

of the case, resolving all factual disputes in favor of the non-moving party, and giving

him the benefit of all reasonable inferences. 

Malone began working at Eaton in June 1993. He was promoted to the position

of shift supervisor in October 1996. After his promotion, Malone was questioned by

his supervisor, Product Line Manager Ron Fowler, concerning rumors at the plant that

Malone was having an intimate relationship with Ann Ables, a worker who reported

directly to Malone. He denied any such relationship. Malone was warned that Eaton

did not permit intimate relationships between supervisors and direct reports and was

advised not to do anything to provide grounds for such rumors. Malone also had a

conversation with Human Resources Manager Tim Krohn concerning the same matter.

In March 1997, Suggestion Coordinator Luci Donaldson reported to Human

Resources Manager Krohn that Malone told her he was having an affair with Lynette

Gilming. Gilming worked under Malone's direct supervision. Donaldson also told

Krohn that Forge Shop Supervisor Jim Williamson and Line Supervisor Doug Hild

were present at the time Malone admitted to the affair. On March 20, 1997, Malone
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met with Krohn and Product Line Manager Fowler in Krohn's office. Malone was

asked if he was having an intimate relationship with Gilming. He was told that Eaton

was concerned about potential liability from a sexual-harassment claim if his

relationship with Gilming were to sour. He was also told that if he admitted to the

relationship, he would be offered a non-supervisory position with the company, and that

no disciplinary action would be taken against Gilming. He was further warned that if

he denied the relationship, and it was later discovered that he had lied, he would be

terminated. Malone lied. In his deposition, Malone explained that he denied that he

was having an intimate relationship with Gilming because he "didn't think it was any

of their business."

Later that day, Krohn met with Williamson, and Fowler met with Hild, the two

other supervisors who were present when Malone admitted the affair to Donaldson.

Both confirmed that Malone had told them that he was having an intimate relationship

with Gilming. The next day, Krohn and Fowler met again with Malone and told him

the results of their investigation. Malone was terminated.

Following the termination, Fowler conducted a meeting with production

supervisors and engineers to reinforce the plant policy of prohibiting intimate

relationships between supervisors and direct reports. The accounts of the meeting are

based on the various recollections of those present. Malone claims, and we assume for

present purposes, that Fowler told those gathered that Malone had been "fired for a

form of sexual harassment."
3The Nebraska statute is patterned after the federal statute, and Nebraska courts

look to federal decisions when construing the Nebraska Act. Airport Inn v. Nebraska

Equal Opportunity Comm., 217 Neb. 852, 353 N.W.2d 727 (1984). 

4On appeal, Malone also argues that the fact that Gilming was not disciplined is

evidence of discrimination. We disagree. Gilming was not a supervisor. The company

may reasonably place most of the burden of enforcing its policy on supervisors who are

to blame.

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II.

Malone's suit alleged that his termination was the result of gender discrimination

in violation of Title VII and the Nebraska Fair Employment Practices Act.3 Malone,

therefore, was required to satisfy the familiar analytical framework set out by the

Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The problem,

however, was that he could not offer enough evidence to permit a reasonable jury to

conclude that Eaton's stated reason for his discharge, namely that he was terminated for

engaging in an improper relationship with a subordinate, and then lying about it, was

a mere pretext for unlawful gender discrimination. 

In an attempt to meet this burden, Malone claimed that a female supervisor also

violated company policy by having intimate relationships with subordinates, but was

not disciplined. According to Malone, when this female supervisor was questioned by

management about rumors and anonymous notes and telephone calls that indicated she

was having an affair with a subordinate, she simply denied the allegations, and the

matter was not pursued any further. The fact that Eaton treated her more leniently,

Malone contended, was evidence that he was discriminated against because of his

gender.4 

We disagree. There were significant and undisputed differences between this

female supervisor's alleged misconduct and Malone's admitted violations of company
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policy. Malone admitted his affair to three other supervisory employees. One of these

employees reported the incident, in person, to management. After Malone denied the

relationship, the other two employees confirmed that Malone had told them he was

intimately involved with Gilming. In the case of the female supervisor, Eaton had only

rumors and anonymous reports that she had violated company policy. Nevertheless,

Eaton questioned her about the situation, and she denied any wrongdoing. This was

similar to the treatment Malone received when Eaton heard rumors that he was

involved with Ann Ables. In that case, Malone was approached by management on the

basis of rumors, and when he denied the allegations, the matter was dropped.

Furthermore, Eaton had strong evidence that Malone had lied to management

investigating the Gilming report even after he was warned that dishonesty would be

grounds for his dismissal. Eaton had no evidence that the female supervisor had been

dishonest. Because of these differences, Malone could not establish, as a matter of

law, that he was similarly situated to the female supervisor and could not use the

difference between Eaton's responses to the reports as evidence of discrimination.

III.

Malone alleged a cause of action for defamation under the common law of

Nebraska. The basis of this claim was the statement made by Ron Fowler, the Product

Line Manager, at a meeting of supervisors and engineers which announced that Malone

had been fired "for a form of sexual harassment." The purpose of this meeting was to

reiterate Eaton's policy against supervisor-subordinate relationships, warn the other

supervisors about the consequences of violating the policy, and underscore the risk of

potential liability from a sexual-harassment claim. This communication was between

parties sharing a common interest in the subject matter and is entitled to a qualified

privilege under Nebraska law. Turner v. Welliver, 226 Neb. 275, 287, 411 N.W.2d

298, 307 (1987). Therefore, in order for Malone to recover he must prove that the

communication was made with malice. Id. Malice is defined as "hate, spite, or ill will"

toward the person about whom a statement has been published. Young v. First United
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Bank of Bellevue, 246 Neb. 43, 48, 516 N.W.2d 256, 259 (1994). There is no

evidence that Fowler acted with malice in announcing Malone's termination in the terms

alleged. The fact that rumors of Malone's discharge may have made it around the plant

and into the community does not subject Eaton to liability. The communication alleged

in the complaint is protected by privilege and is not actionable. 

IV.

We have fully considered Malone's other arguments and find them to be without

merit. The judgment is affirmed.

A true copy.

Attest:

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