Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1990)

John C. DEWEY, Plaintiff-Appellant,v.WESTERN MINERALS, INC.; WYTANA, INC., Defendants-Appellees.

No. 90-35252.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1990.Decided Jan. 29, 1991.

Before FLETCHER, FARRIS and BOOCHEVER, Circuit Judges.


MEMORANDUM* 

John Dewey, plaintiff in the proceedings below, appeals the grant of summary judgment dismissing his complaint against Western Minerals, Inc. and Wytana, Inc., his former employers, for disseminated derogatory letters of reference about him that were both libelous and in violation of Montana's blacklisting statute, Mont.Code Ann. Sec. 39-2-803. We affirm.

Western Minerals, Inc., and Wytana, Inc. operate a joint venture in Decker, Montana under the name of Decker Coal Company ("Decker"). Dewey was terminated in 1981. He asserts that since that time he has been unable to find work because Decker has given prospective employers negative references about him.1 

As evidence in support of both his libel and blacklisting claims, Dewey proffers documents that he states he received in the mail in April, 1984, in an envelope that was not postmarked. These documents include an anonymous transmittal letter, a personnel memorandum written by Decker superintendent Willard Harper detailing the reasons for Dewey's termination, which both parties agree is a genuine memorandum written by Harper on May 22, 1981, and two photostatic copies of reference letters dated June, 1981, purportedly signed by Decker employees Leonard Skretteberg and Mike Crilly. Both Dewey and Decker agree, based on expert evaluations, that the Skretteberg and Crilly letters were not actually signed by the two employees; rather, the signatures are photocopies of signatures from legitimate reference letters prepared and signed by Skretteberg and Crilly, which were given to Dewey when he was terminated from Decker's employ in 1981. These signatures have been added to text that, unlike the original letters, presents a severely negative assessment of Dewey's performance. The genuine Skretteberg and Crilly letters are still in Dewey's possession. Decker states that it kept a copy of the Skretteberg letter but not the Crilly letter in its files.

Dewey also proffers testimony of Larry Deeds, president of the United Mine Workers' Local No. 1972, that other copies of the Skretteberg and Crilly letters and the Harper memorandum were sent anonymously to Deeds in mid-September of 1984. According to the note enclosed by the anonymous sender, the material had been found in a dump in West Virginia while the sender wandered about the area. The note stated that the sender had read about the trouble between the UMW and Decker and was therefore forwarding the letters. The letters were postmarked Richmond, Virginia on September 15, 1984.

Deposition testimony of Richard Smith, the former owner of Acme Personnel Service, is also proffered by Dewey. Smith contends that he received a copy of a negative assessment from Decker after requesting a reference regarding Dewey from the company. Smith could not recall who signed the letter, however, and states that he did not retain a copy of it.

Finally, Dewey proffers deposition testimony of John MacIntire, a private investigator hired by Dewey. MacIntire states that he received copies of the unfavorable recommendations in the mail in September, 1985 after he mailed Decker a request for a recommendation regarding Dewey under the name of a construction company. The letters arrived in a Decker envelope postmarked Decker, Montana, the town in which Decker is located; the postmark, however, is from the post office in the town rather than from Decker's postage meter. It is undisputed that MacIntire sent a copy of his request to Dewey as well as Decker.2 

The district court granted Decker's motion for summary judgment on both counts of Dewey's complaint. According to the court, Dewey failed to proffer sufficient evidence to raise a genuine issue of fact regarding whether Decker had created and disseminated the pasted-up Skretteberg and Crilly letters.3  In the district court's words, " [T]here are no facts from which a reasonable jury would conclude that defendants, or any agent of defendants, was responsible for the creation and/or dissemination of the letters in question." Feb. 16, 1990 Order, at 9 (emphasis in original).

On appeal, Dewey argues that the district judge erred in granting summary judgment on the ground that no reasonable jury could determine that Decker had sent the unfavorable recommendations.4  We review the grant of a motion for summary judgment de novo.

A district court may grant summary judgment in the absence of "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). It may not do so, however, on the basis of judgments of the relative credibility of the parties. Such " [c]redibility determinations ... are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Id. at 255 (citing Adickes, 398 U.S. at 158-59). Thus, where the nonmoving party presents admissible direct evidence, such as through affidavits, answers to interrogatories, or depositions, the judge must accept the truth of the evidence set forth; no credibility or plausibility determination is permissible. T.W. Elec. Serv. v. Pacific Elec. Contractor, 809 F.2d 626, 631 (9th Cir. 1987); McLaughlin v. Liu, 849 F.2d 1205 (9th Cir. 1988). Where, however, the nonmoving party presents indirect evidence in support of its claim, the district judge may consider other facts not in dispute, such as background or contextual facts, in addition to facts in dispute which the judge assumes, for the purposes of summary judgment, would be resolved in favor of the nonmoving party. On this basis, the district judge may reject inferences sought to be established by the nonmoving party if they are not reasonable. T.W. Electric, 809 F.2d at 631.

When considered in this framework, it is clear that no reasonable jury could find that Decker either constructed or disseminated the allegedly defamatory letters. Dewey proffers no direct evidence demonstrating that Decker was responsible for the letters in question; instead he contends that the facts in the record support an inference that Decker was responsible. Review of the evidence in the record demonstrates, however, that it could not reasonably be construed to yield such an inference.

Several pieces of evidence in the record compel us to reject any inference of Decker's responsibility for the letters as unreasonable. The unfavorable recommendations alleged to be defamatory were paste-up copies. Therefore, no inference can be made that they were constructed by either Skretteberg or Crilly; indeed, if any inference were appropriate, the evidence suggests individuals other than Skretteberg and Crilly constructed the letters--if they had written the letters they need not have gone to such elaborate lengths (they would simply have written the letters and signed them). Moreover, it is undisputed that the genuine Skretteberg and Crilly letters had been disseminated to others outside the Decker Company and therefore a number of other people, including Dewey, had access to them.5  Others, too, had access to the requests for references regarding Dewey. Moreover, evidence in the record indicated that the typewriter used to address the envelope in which the unfavorable recommendations were sent to Dewey was the same one used to create the paste-up copies. That Decker employees would both create the pasted-up copies and send them to Dewey does not stand to reason. Further, the letters purportedly written by Decker were not postmarked by the Decker company, but instead by the post office in the city of Decker.

On the basis of these undisputed facts, no reasonable inference that Decker created or disseminated the letters in question could be drawn from the proffered evidence. Accordingly, the district court's grant of summary judgment is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3

 1

Before filing this suit, Dewey successfully maintained an action for age discrimination against Decker. The district court in that action denied Dewey's motion to amend his complaint to assert a cause of action for blacklisting. That denial was affirmed by this circuit on the ground that Dewey failed to allege that Decker had furnished any statements about him to prospective employers. Dewey v. Peter Kiewit Sons' Co., Nos. 83-420, 83-4253 (9th Cir. Oct. 1, 1984) (mem. op.)

 2

Dewey also proffered his own deposition testimony that two employees of Colowyo Coal Company, a company to whom he applied, informed him they would make reference checks and subsequently told him they would make reference checks and subsequently told him that he should "straighten out problems with his former employer." As this evidence is hearsay, however, it may not be taken into account on a motion for summary judgment. Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir. 1980). Both employees, by affidavit, deny Dewey's statement

 3

On appeal, Dewey argues that the memorandum written by Willard Harper was libelous and blacklisting, as well as those written by Skretteberg and Crilley. Because Dewey failed to argue that the Harper memorandum was libelous or blacklisting in the court below, this claim will not be addressed on appeal. See Trans Container Servs v. Security Forwarders, Inc., 752 F.2d 483, 487 (9th Cir. 1985)

 4

Dewey also argues at considerable length that the district court erred in suggesting that Dewey, himself, had disseminated the defamatory letters. As the issue on appeal is whether a reasonable jury could find that Decker, not Dewey, had sent the letters, we discuss the issue only insofar as it bears on Decker's possible involvement in sending the pasted-up versions of the Skretteberg and Crilly letters

 5

For purposes of determining this motion for summary judgment, we do not consider Decker's direct evidence that it retained no copy of the Crilly letter. While the mere claim that an affidavit is perjured is insufficient, where specific facts are alleged that if proven would call the credibility of the moving party's witness into question it may not be used as a basis for denying summary judgment. 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 2d Sec. 2726 at 115-119 (1983); see also Lodge Hall Music, Inc. v. Waco Wrangler Club, 831 F.2d 77, 81 (5th Cir. 1987)