*4 DENNIS, Before CLEMENT and OWEN, Judges. Circuit CLEMENT, EDITH BROWN Circuit Judge:
Appellant Shane Bellard was dismissed Rouge police training East Baton Coburn, asleep you program falling According after class and hard.” he made purportedly making inappropriate sexual while gesturing statement with his right He a name-clearing comments. demanded arm in manner she took to be hearing Rouge Thompson gesture from the East Baton Parish sexual. took the Sheriff, Gautreaux, Sid but was denied. mean “his manhood.” Bellard admits brought Bellard then making federal state law this comment but denies he intend- the Sheriff for his ed it to Upon question- failure to be sexual. further grant name-clearing hearing ing, and for po- Thompson explained Coburn defamatory tentially statements made previously re- made them feel garding dismissal. The district insinuating uncomfortable he knew homes, court granted they judg- were alone their and com- ment on all of claims. menting they nice how looked their appeals Upon the dismissal of learning uniforms. of this informa- tion, state appeal, law claims. On we report AFFIRM Venable instructed Bellard to ruling again. district court on all to HR being After interviewed points. HR personnel, he was issued letter of *5 January
termination dated 2008. The FACTS AND PROCEEDINGS letter he being stated was terminated for sexual harassment. employed Shane Bellard was the East Rouge father, Baton Sheriffs Office as a Bellard then informed his Dennis deputy Bellard, sheriff and was enrolled as a cadet Rouge police a former Baton offi- cer, in Capital Regional the Area Training of his termination. told He Dennis (“CARTA”). Academy During training, the for reasons the termination as well as Bellard was not a model cadet specific allegations and showed the Coburn up late fell asleep and in class on multiple and Thompson. Bellard also contacted He occasions. was also sent home Knaps, family from Mike friend and the Chief firing range the for taking Baker, prescription Police in Louisiana. Bellard also medication Ambien operating while Knaps fire- told he was fired for sexual harass- tardiness, arms. After three for violations ment and tardiness. Knaps Bellard asked at range, intoxication and sleeping speak behalf, in to to the Sheriff on his which class, Venable, Captain CARTA, head of Knaps During conversation, did. their recommended he be excused from Knaps pushed the Sheriff to let Bellard academy. resign than being rather The fired. Sher- iff agreed, long so as Bellard did so in a was Bellard sent to Human Resources timely According Knaps, fashion. (“HR”) problems. because of his Two fe- Sheriff spoke never with him about the students, male Carla Holly Coburn and specific allegations of sexual harassment. Thompson, also came forward with com- ultimately rejected Bellard the offer of plaints about his behavior. According to resignation hopes in the pursuing civil their deposition testimony, Bellard made damages. comments of a sexual nature to them. A few weeks after entering training pro- Dennis also peo- Bellard contacted two gram, Bellard was lunch eating ple at about son’s termination. First he Academy when Coburn him Knaps, asked what he contacted who told him that his son was eating. responded that he was terminated because of tardiness and (Meal Eat) was a MRE eating Ready to sexual behalf, harassment. On his son’s and that he ate MRE’s because “it makes Dennis also contacted the Sheriff termination, personal capacities in and although both official about his son’s under U.S.C. 1983. Bellard claims he phone talk on the until weeks two did not deprived of a was interest after the termination. Louisiana and U.S. Constitu- In to the conversations addition name-clearing when tions he was denied behalf, out on his Shane Bel- were carried hearing being after terminated. Bellard the Chief lard contacted Chief law also asserted state defamation claims Rouge Depart- Baton Police Police of the in his individual and forms basis ment. This conversation capacities official that the Sheriff alleging suit, but its substance is of Bellard’s orally published allega- sexual harassment claims that LeDuff stat- dispute. Bellard persons him to outside tions heard of ed he sought office. Bellard declarato- Sheriffs their prior termination conversation. relief, injunctive ry compensatory and and any- LeDuff states he did hear damages, and punitive reinstatement of his termination until the con- thing about employment. he versation where Bellard told him that moved judg- The Sheriff and had been was terminated accused granted part was de- harassment, class, sleeping sexual in part. Summary judgment nied or works “inappropriate contact [sic]” granted the Sheriff in his individual in his deposition LeDuff stated female. capacities and official the federal consti- calling that he believed Bellard was about granted tutional claims and for the Sheriff that he possibility employment *6 capacity in his individual on Bellard’s state that he have call the told Bellard would to constitutional claims. The motion for sum- to out informa- Sheriffs office find more mary judgment was denied for official and tion. called the Sheriffs office LeDuff In capacity state constitutional claims. ad- get was that someone would back to told dition, granted the Sheriffs motion was on Eventually him. someone called him back the state law defamation claims his indi- Ac- and Bellard’s termination. discussed capacity, vidual but denied in his official cording testimony, person to LeDuffs punitive capacity. Bellard’s claim for dam- not Finally, was the Sheriff. LeDuff testi- reinstatement, ages, pay, lost and benefits during deposition fied his Bellard’s were dismissed. in- testimony about their conversation is if correct and that he did state to Bellard ruling, After the district court’s Bellard that he had heard about the termination prior ruling moved to alter or amend the prior hearing to it from Rule of Procedure Federal Civil Bellard, 59(e). it was because he was The opin- district court altered the “maybe fishing for information” from Bel- to his federal interest ion reinstate lard. claims his individual capacity, subject development to further counsel, Through requested Bellard regarding the record Chief LeDuffs con- name-clearing hearing “prove to his inno- in the Sheriffs personnel versations with cence for he was charges on The office. court also Bellard’s reinstated fired his name.” He his and clear and un- official individual claims on The request formal June 2008. law der Louisiana constitutional rejected request day by was the next punitive damages claims under 1983. basis of Sheriffs counsel Bellard’s deposition at-will law. After the LeDuff and employment under Louisiana Chief briefings, the district court brought supplemental remaining all dismissed of Bellard’s claims. DISCUSSION pri- district hinged The court’s decision Hearsay A. marily on the conclusion that LeDuff told him he had statement The district court determined that Bel- already spoken with office the Sheriffs him lard’s statement that LeDuff told he before their own conversation was double heard about termi- hearsay such not competent and as was nation their dou- before conversation was summary judgment. There evidence hearsay prohibited ble and was from con- no that the information re- was summary sideration on a motion for garding was disseminated his termination judgment. The district court further ex- anyone than other Bellard himself or impeach- used plained that could be agents. appeals. LeDuff ment evidence should take the appeals stand. Bellard this ruling as- STANDARD OF REVIEW AND serting hearsay that it is admissible APPLICABLE LAW that the sua judge’s sponte ruling district We review a court’s rul hearsay improper. ing on motion de argues supposed Bellard first that the apply legal novo and the same standards by LeDuff hearsay statement is admissible Condrey as the district court. v. Sun- (5th Ga., because it fits into hearsay one Bank Trust F.3d Cir.2005). exceptions pursuant to Federal Rules of Summary judgment proper 801(d)(2).801(d)(2) Evidence Rule pursuant provides Rule of the Federal Rules pleadings, depo by party-opponent Procedure “if statements made Civil “(A) sitions, hearsay if interrogatories, party’s answers and ad are it is: file, statement, together missions on own an the affida either individual or vits, (D) if any, show that there is no ... genuine representative capacity or a state- issue of material fact moving party’s agent servant con- party is to judgment entitled as a matter cerning a matter within the scope *7 Catrett, of law.” Corp. Celotex v. 477 U.S. agency employment, during 317, 322, 2548, 91 106 S.Ct. L.Ed.2d 265 existence relationship.” of the Additional- (1986). To withstand a motion sum for Rule ly, provides 805 that “Hearsay includ- mary judgment, plaintiff a must that show hearsay within ed is not under excluded genuine pre there is a issue for trial Hearsay part Rule if each com- of the senting specific evidence facts. bined excep- statements conforms with an Inc., Liberty v. Lobby, Anderson 477 U.S. hearsay provided tion to the rule in these 242, 248-49, 106 2505, S.Ct. 91 202 L.Ed.2d Rules.” testimony Bellard claims his (1986). Conclusory allegations and unsub about LeDuff s comments should be admit- stantiated not satisfy assertions will hearsay step— ted as double with the first plaintiffs burden. See v. Tex. Grimes the conversation LeDuff between and the Health, Dep’t 137, Mental 102 F.3d 139- party oppo- Sheriff—an admission a (5th Cir.1996). Finally, especially and nent, step' and the second conversa- —the case, relevant to this on a motion for sum tion between Bellard and LeDuff —non- mary judgment, the proffered by evidence hearsay because it is not offered to show plaintiff satisfy to proof his burden of the fact of the matter asserted. must be competent and admissible at trial. Distrib., Inc.,
Martin v. John W. Stone Oil Bellard is correct on his asser first (5th Cir.1987). 819 F.2d prong, purported tion. The first state- asserts, LeDuff, point would Bellard but does not to to from the Sheriff ment circuit, unobjected ad- in this to hearsay, any but is cases normally be considered Rule a non-hearsay hearsay deciding should be included missible 801(d)(2)(D) party- judgment. admission a motion for The stan as an this testify, summary judgment for which state If LeDuff to dards opponent. However, only competent can be used be admissible. evidence statement would weigh against and Le- this deciding between Bellard motion the conversation Further, LeDuff court on is reading. in which Bellard claims that this review Duff him had heard to correct the admission permitted that he told unobjected hearsay textbook to in the interest of about the incident is Rep use his v. hearsay. attempting is to fairness. Peaches Entm’t Entm’t (5th Cir.1995). ertoire, It testimony to show 62 F.3d own Sheriff incident, before odd to a court to prohibit to LeDuff about would be district talked it. Bel- error make a and Bellard talked about correct the LeDuff conver- evidence in ab purpose introducing competency to lard’s hearsay objection to a permit with LeDuff is show sence of but sation accusa- to the error appeal. told LeDuff Bellard’s this court correct on conver- rule run counter to prior to Bellard LeDuff s would the usual tions Such on this permitting evidence trial court to cor sation. standard of his conver- its own is own recollection rect errors. point He is to admit trying with LeDuff. sation question Because we the evidence in find recollection of what evidence his own hearsay and that the district court was conversation someone else said hearsay despite be permitted find it to is His that such evidence him. assertion hearsay prior the lack of discussion hearsay hearsay unfounded. This is not is reject opinion, the district court’s initial we exceptions. hearsay does fit appeal point. on correct that such testi- Although Bellard is mony impeach could used to be Liberty Interest B. Bellard’s Federal competent is not impeachment evidence alleges that summary judgment. United capaci in his official and individual liable (5th Glassman, 954, 958 562 F.2d States a Fourteenth Amend ties for a violation of Cir.1977). interest based the Sheriffs name-clearing hearing to Bel denial of argues Bellard also *8 even an at-will public employee, this issue lard. A not have ruled on judge should right has to no employee, the a constitutional sponte briefing without before sua opportunity an to be when the hear tice and heard and should have considered court in manner objected employee “discharged to is a say it was not the evidence because defamatory a im that creates false and Although the defendant. thus stigmatizes about him and pression law in Fifth Circuit out that the points employ him from may be him and forecloses other “unobjected hearsay is City Bledsoe v. opportunities.” trier of fact for such ment by the considered (5th Lake, 650, 653 have,” F.3d Cir. may White Horn 449 value as it probative 2006). Inc., employs a F.3d This court seven-ele Miss. 163 head v. Food Max of (5th Cir.1998), to de 265, incorrectly stigma-plus-infringement char test he ment 275 § allows govern whether 1983 a rather than termine requirement this as a acterizes remedy for employee deprivation a such to consider evidence. permission the opportunity stigmatizing without notice or facts to public. be made Guillot, 1123, hearing. Campos for a v. name-clearing plain- “The 743 F.2d (5th Cir.1984). (1) (2) tiff While other circuits discharged; must show: he have was self-publication held can meet stigmatizing charges made against were element, publication (3) this court has consis- him in discharge; connection with the tently (4) public held that disclosure must be false; charges he was not government defendant. provided notice or an opportunity to be Hughes City Garland, 223, v. 204 F.3d (5) prior discharge; heard to the (5th Cir.2000). Here, publication (6) charges public; request- were made he if any, at charges, was made the behest name; (7) hearing ed a to clear his of Bellard when he his asked father and employer the request.” denied Id.
Chief
to act on
Knaps
his behalf to resolve
consequences
the matter. The
Capacity:
Individual
natural
such
request
were that information was
against
claims
conveyed
incident,
to them involving the
in his
capacity
individual
fail because Bel
directly by
himself,
either
or when
any
lard cannot show
evidence on sum
they
attempted
act on Bellard’s behalf
mary judgment
regarding the fifth ele
in contacting the Sheriff.1 Because there
ment, publication.
this claim
Because
publication,
no
we affirm the dismissal
against the Sheriff in
capaci
his individual
of suit against the Sheriff in his individual
ty he must show that
personal
capacity.2
ly publicized
defamatory
statements.
only
regard
evidence in this
is his
Capacity:
Official
own statement about the conversation he
The district court also correct
had with Chief
where LeDuff pur
ly
dismissed
claims
against
Sheriff
portedly
said
he had
heard
capacity.
his official
Claims
about the termination from the Sheriff.
in his official
are treated
agree
Because we
with the district court
as
municipal
entity he
hearsay
this is
not proper
evi
represents. Municipalities may be held
dence for
judgment, Bellard’s
liable under
1983 for constitutional vio
claim against the Sheriff
individual
(1)
lations if:
there is a constitutional vio
capacity fails.
(2)
lation;
custom;
an official
or
policy
Bellard attempts to skirt
(3)
showing
that the official policy
lack of
offering other conver
operational
custom was the
force be
publication.
sations
The
other
hind the constitutional violation. See Mo
‘publication’
however,
Bellard can point to
Ser.,
nell Dep’t
Soc.
436 U.S.
are instances in which
himself publi
(1978).
he
S.Ct.
order to take revealed this discussion with an Bellard’s claim for defamation department official in the Sheriffs oc his individual capaci ty curred LeDuffs conversation with still competent lacks evidence show after During Bellard. ing published LeDuffs conversation that his termination was ato Bellard, he told party Bellard he would third in an unprivileged manner and have to contact the Sheriffs office to find thus fails for similar reasons his due Therefore, out more information. process the con claims. The communications be behalf, versation was undertaken LeDuff on tween working Knaps those on his Bellard, Sheriff, Bellard’s behalf. The district court’s anal Dennis fall ysis if was correct since even LeDuff within mis either the privileged communica led for the purpose fishing exception publication tions or fail the re- *11 others, including the cadet’s they were did tell because self-induced. quirement friends, reasons for his dismiss- Jenkins, about the at re- 669. With See So.2d publication That was much different al. the the communication between gard to here, allegations any publi- the where only Bel- evidence Sheriff and Knaps, Bellard, to Dennis or LeDuff cation hearsay. is inadmissible presents lard made on Bellard’s behalf and after Capacity already apprised been they Official by Bellard In Four- termination himself. al originally The court cade, question the cadet in had told others capacity defamation the official lowed his termination and the court found about but to continue against the Sheriff claims negate such did not self-publication the motion for sum eventually granted supervisor’s publication his of the defama- deposition of Le- judgment after the mary to tory attempts statements. Bellard capacity, In his official Duff. this with his situation but fails to equate vicariously hable for the actions may be key out a difference. The cadet’s point Louisiana law. under his subordinates people to disclosures Fourcade were cases deal are no Louisiana There through than who found other those out self-publication defamatory state with Here, supervisors. his disclosures noted, ments, “giv court as the district but people the Sheriffs officewere the same at the necessity proving fault en the In Four- Bellard had informed. Loui negligence greater under level of cade, conflict self-publication did not Law, allowing proof self-publica siana defamation, current with the but in the comport would not purposes for these tion case, any have poten- there would not been tort.” the elements of such without tially defamatory conversations Gautreaux, *4 at 2011 WL self-publication initial Bellard to the (M.D.La.2011). very people same who later received the defamatory supposedly information. to the case of Four points support argu City Gretna to cade v. relayed Finally, information should survive personnel to LeDuff the Sheriffs office summary judgment. 598 So.2d motion Louisiana law which protected (La.Ct.App.1992). There are some by a former provided information protects allegations similarities between employer prospective employer.5 to a Fourcade, ca police In and Fourcade. Therefore, any un Bellard cannot show police from the acade det was terminated his state privileged publication support allegations of use were my after steroid claims and affirm law defamation we to his The truth of superiors. summary judg grant district court’s cadet allegations proven was never and the ment for Sheriff. to clear his name. given
was not chance CONCLUSION Unfortunately argument, for Bellard’s similarities present end. is where Unlike Because Bellard has failed to evidence, case, competent summary Fourcade supervisors instant that, 23:291(A): acting "Any provided employer is in bad employer such 5. La. R.S. request by employer or a upon prospective be to be employer faith. An shall considered provides employee, accu- current or former by a acting in bad if it can be shown faith a current or former rate information about preponderance that the infor- job employee’s performance or reasons knowingly de- false and mation disclosed liability separation shall be immune from civil liberately misleading.” consequences of such and other disclosure *12 466 grant Department
we AFFIRM the district court’s and his would not be immune (if liable) judgment in favor of Sheriff summary liability they in fact Gautreaux. Louisiana Revised Statutes 23:291(A). Therefore, I concur in the DENNIS, Judge, concurring Circuit majority’s judgment affirming the district the judgment: grant summary court’s judgment for the majority I with the that the agree dis- Sheriff on all Bellard’s claims. grant summary trict court was correct to Rouge
judgment for East Baton Parish However, I
Sheriff Sid Gautreaux III. do majority’s with all agree reason-
ing join judgment therefore in the far
only. As as Shane process claims,
and state constitutional due summary judgment evidence fails to L.P., BEPCO, Plaintiff-Appellee, include admissible evidence to show that anyone in his Department
the Sheriff published the sexual harassment allega- MINERALS, FE SANTA led tions Bellard that to his termi- INCORPORATED, et Department. nation from the Sheriffs al., Defendants, Bellard’s affidavit that Chief Jeff LeDuff told him that the had purportedly ICAROM, P.L.C., Party Third told LeDuff that terminated Defendant-Appellant. for sexual harassment was inadmissible No. 11-30986. 801, Thus, hearsay. See Fed.R.Evid. 805. competent summary judgment was not Appeals, United States Court of 56(c)(4) (“An evidence. See Fed.R.Civ.P. Fifth Circuit. support affidavit ... used to or oppose a 15, March 2012.
motion must ... set [inter out facts alia] would be admissible ....”). Neither was the fact that Bellard allegations
himself told LeDuff about those publication, Hughes
evidence of see v. City Garland, (5th F.3d Cir.
2000) (“This Circuit consistently has re-
quired public disclosure be made governmental entity].”); [defendant
nor did Bellard introduce evidence that
anyone in the Department Sheriffs
“plac[ed] allegations] [such publicly file,” Tebo,
available Tebo v. 550 F.3d (5th Cir.2008); Hughes, see also
F.3d at 228. regard With to Bellard’s claims,
state law defamation
was also entitled to
because Bellard genuine failed to show a why
issue of material fact as to