1 Pursuant to 5th Cir. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-10339

(Summary Calendar)

__________________________

SHARON A. FIELDS,

Plaintiff-Appellant,

versus

JANE KEITH;

DARYL M. BRYANT;

DELTA AIRLINES INC.

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(3:99-CV-2682-L)

___________________________________________________ August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM: 1

Plaintiff-Appellant Sharon A. Fields (“Fields”) appeals the

district court’s grant of summary judgment to Defendants-Appellees

Jane Keith, Daryl M. Bryant, and Delta Airlines Inc. (collectively

“Delta”) on her claims of defamation, theft, conversion, invasion2

of privacy, and retaliation. Finding no error, we affirm.

I.

FACTS AND PROCEEDINGS

Fields worked for Delta as a flight attendant for nearly 30

years. One of her duties was to sell headsets and alcoholic

beverages to Delta passengers. Delta does not closely monitor such

sales, but instead relies on its flight attendants to report their

sales accurately and to turn in all funds received from such sales.

In ea rly 1999, Delta began receiving reports from several

flight attendants that they suspected Fields of mishandling funds

from the sale of alcoholic beverages and headsets. The frequency

and sim ilarity of the complaints prompted Fields’s supervisor,

Betsy Hanry, to bring the matter to the attention o f her own

supervisor, Jane Keith, who in turn a dvised Hanry to contact

corporate securit y

. Pat Dillard, a corporate security

representative, then beg an an investigation into the complaints

against Fields.

As part of Delta’s investigation, Dillard and Daryl M. Bryant

(also a corporate security representative) traveled incognito on

two flights serviced by Fields and used marked money to purchase

headsets and alcoholic beverages from her on each flight. On the

return flight, Fields was required to make change for numerous

passengers who purchased beverages for cash. As Delta does not

provide its flight attendants with funds to make chan ge, Fields

used excess cash of h er own that she carried with her for that2 Of course, given the facts that Fields provided change to

passengers out her own funds and deposited the same total —— $300

— — as she started with, her inclusion of the marked bills in her

deposit proves nothing with respect to the allegations of theft.

3 purpose.

As was customary, Fields kept the cash from the sale of

headsets and alcoholic beverages in her beverage caddy. At the end

of the flight, however, cash and alcoholic beverages were missing

from Fields’s caddy. Fields would not sign the certification card

in her “liquor kit” because of these discrepancies. Another flight

attendant, who was responsible for completing the liquor form for

the entire flight, wrote on the form that Fields was responsible

for eight bottles of liquor, and the flight attendant in charge

then completed the form.

After the flight, Fields went to the Delta Empl oyees Credit

Union (“DECU”), where she deposited $300 in cash (the same as the

amount of her own funds that she had brought with her a board the

flight). After the cashier handed Fields her receipt, Dillard and

Bryant appeared and accused Fields of having stolen funds from the

sale of liquor and headset money during the flight. Bryant then

removed bills totaling $80 from the cash Fields had just deposited,

a nd stated that these bills had been marked by him before the

flight. In the presence of Fields, Dillard, and Keith, Bryant

stated that Fields had stolen funds, including the $80 in marked

bills. 2 Bryant also stated that “entrapping” Fields was the

“easiest case [he] had ever had” because Fields was so “stupid.”3 45 U.S.C. § 151 et seq

.

4 Fields’s claims as to Bryant were dismissed without prejudice

after the district court concluded that he had not been properly

served. On appeal, Fields does not contest the district court’s

dismissal of her claims against Bryant.

4 Keith suspended Fields, pending the investigation’s

completion. Keith then prepared a memorandum recommending that

Fields be terminated. Delta subsequently did so, on the ground

that Fields had improperly handled Delta funds. Although she was

given the option to resign , Fields refused to do so. Shortly

thereafter, Fields was informed of her termination.

Weeks later, Fields filed suit again st Delta in Texas state

court, and Delta removed to federal district court. Fields

asserted state-law claims of defamatio n, theft, conversion, and

invasion of privacy, together with a federal claim that her

termination was in violation of the Railway Labor Act 3 (“RLA”). In

short, Fields’s theory of liability is that Delta brought the theft

charges against her in retaliation for her vocal support of a union

organization drive at Delta. Delta denied all liability and moved

for summary judgment on all claims. The district court granted

Delta’s motions and dismissed Fields’s claims with prejudice. 4

This appeal followed.

II.

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo , applying the5 Morris v. Covan World Wide Moving, I nc. , 144 F.3d 377, 380

(5th Cir. 1998).

6 F ed. R. Civ. P. 56(c); C elotex Corp. v. Catrett

, 477 U.S.

317, 322 (1986).

7 See Olabisiomotosho v. City of Houston

, 185 F.3d 521, 525

(5th Cir. 1999).

8 Celotex Corp. , 477 U.S. at 323.

9 Reeves v. Sanders on Plumbing Products, Inc. , 530 U.S. 133,

150 (2000).

10 Id. at 151.

5 same standard as the district court. 5 A motion for summary

judgment is properly granted only if there is no genuine issue as

to any material fact. 6 In deciding whether a fact issue has been

created, we must view the f acts and the inferences to be drawn

therefrom in the light most favorable to the nonmoving party. 7

The standard for summary judgment mirrors that for judgment as

a matter of law. 8 Thus, we must review all of the evidence in the

record, but make no cred ibility determinations or weigh any

evidence. 9 In reviewing all the evidence, we must disregard all

evidence favorable to the moving party that the jury is not

required to believe, and give credence to the evidence favoring the

nonmoving party as well as that evidence supporting the moving

party that is uncontradicted and unimpeached. 10

B. Fields’s Defamation Claim: Qualified Privilege

Although Fields has raised several issues on appeal, only one

merits discussion. Fields contends that Delta lost its qualified11 Danawala v. Houston Lighting & Power Co. , 14 F.3d 251, 254

(5th Cir. 1993).

12 Bergman v. Oshman’s Sporting Goods, Inc.

, 594 S.W.2d 814, 816

(Tex. Civ. App.—— Tyler 1980, no writ).

13 Duffy v. Leading Edge Products I nc. , 44 F.3d 308, 313 (5th

Cir. 1995).

14 See Hagler v. Proctor & Gamble Mfg. Co.

, 884 S.W.2d 771, 772

(Tex. 1994).

6 privilege as an employer to make statements about her suspected

misconduct as an employee because it did so with actual malice. We

agree with Fields’s view of the law but disagree with her assertion

of the presence of actual malice.

Under Texas law, “a communication made on a subject matter in

which the person making it has an interest is privileged if made to

persons having a corresponding interest or duty.” 1 1 Texas courts

h ave long recognized that the qualified privilege applies to

statements by employers (and their employees) to interested persons

about an employee’s suspected misconduct. 12 A qualified privilege

is lost, however, i f its holder makes statements with actual

malice. 13

As used in defamation cases, “actual malice” is a term of art

which means “the making of a stat ement with knowledge that it is

false, or with reckless disregard of whether it is true.” 14

Reckless disregard, in turn, is defined as “a high degree of

awar eness of probable falsity, for proof of which the plaintiff

must present sufficient evidence to permit the conclusion that the15 Duffy

, 44 F.3d at 313 (internal quotation marks and citation

omitted).

16 Id.

17 Maewal v. Adventist Health Systems/Sunbelt, Inc.

, 868 S.W.2d

886, 893 (Tex. App.—— Fort Worth 1993, writ denied).

18 We assume for the purpose of deciding this appeal that the

statements themselves were defamatory.

19 See Duffy , 44 F.3d at 313-15.

7 defendant in fact entertained serious doubts as to the truth of

[the] publication.” 15 Errors in judgment are not enough to support

allegations of actu al malice. 1 6 Furthermore, “[f]alsity coupled

with negligence, failure to investigate the truth or falsity of a

statement, and failure to act as a reasonably prudent person are

insufficient to show malice.” 17

Fields does not dispute that the statements of which she

complains are privileged. 18 Instead, she contends that there is a

material fact issue with respect to wh ether the statements were

made with actual malice such that the privilege was lost.

Fields has presented no competent summary-judgment evidence to

support her claim that Keith, Dillard, and Bryant made the

statements at issue knowing they were false or with reckless

disregard of whether they were false, i.e. , with a high degree of

awareness of probable falsity. In particular, Fields misconstrues

dicta from our opinion in Duffy to stand for the proposition that

a qualified privilege is lost if there is a “fabricated story” or

“ulterior motive” by the defendant. 19 But D uffy said no such thing.20 See id. at 314.

21 NLRB v. Soft Water Laundry, Inc.

, 346 F.2d 930, 935-36 (5th

Cir. 1965).

8 Rather, that case’s mention of fabrication as potential evidence of

actual malice was referring to a situation in which there were no

underlying allegations of misconduct and the speaker knowingly

misrepresente d the existence of such allegations. Here, by

contrast, it is undisputed that Delta received several complaints

from Field’s fellow flight at tendants about her suspected

misconduct.

Fields’s reliance on Duffy ’s mention of “ulterior motive” as

potential evidence of actual malice is similarly misplaced. Like

the plaintiff in that case, Fields has presented no evidence that

“the investigation was a mere pretext for a decision that had

already been made.” 20 Fields insists that the “real” reason for her

termination was retalia tion for her vocal support of unionorganizing efforts at Delta. But the bare fact that Fields

supported such efforts is insufficient as a matter of law to

establish the requisite nexus to her termination. 21 We have combed

the record in this case but find no facts that could enable a

r e asonable jury to conclude that, despite Fields’s subjective

belief, anyone at Delta acted on any an ti-union animus in

investigating or terminating Fields.

In sum, Fields has not adduced competent summary-judgment

evidence that Keith, Bryant, o r Dillard made any statement that9

they either (1) knew was false when they made it or (2) actually

entertained serious doubts about when they made it. As Fields has

failed to raise a material fact issue with respect to actual

malice, we agree with the district court that the allegedly

defamatory statements made in this case were privileged.

Accordingly, summary judgment was providently granted.

III

CONCLUSION

Fo r the reasons discussed above, we affirm the district

court’s summary judgment for Delta and Keith in all respects.

AFFIRMED.