UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELDO O. DANIELS,
Plaintiff-Appellant,

v.

GEORGIA-PACIFIC CORPORATION,
Defendant-Appellee,                                                     No. 97-2670

and

UNKNOWN EMPLOYEE(S)OF GEORGIA-
PACIFIC CORPORATION,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CA-94-63-L)

Submitted: August 4, 1998

Decided: August 25, 1998

Before ERVIN, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William G. Wentz, Bedford, Virginia, for Appellant. Christine H. Per-
due, Elizabeth A. Lalik, HUNTON & WILLIAMS, McLean, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Eldo O. Daniels appeals the district court order granting Georgia-
Pacific's motion for summary judgment and dismissing Daniels' defa-
mation action. On appeal, Daniels argues that his defamation claims
should not have been dismissed as time-barred. Finding no error, we
affirm the order.

Eldo Daniels is a Georgia-Pacific employee working at Georgia-
Pacific's Big Island, Virginia, mill. In August 1992, another Georgia-
Pacific employee, Linda Brown, complained to Georgia-Pacific offi-
cials that Daniels had made objectionable statements or acts. Georgia-
Pacific conducted a brief investigation to determine if Daniels sexu-
ally harassed Brown. Georgia-Pacific held an initial meeting to notify
Daniels that an investigation would take place. Georgia-Pacific held
a second meeting after a two-day investigation and advised Daniels
that his acts and statements did not constitute sexual harassment and
the charges were dismissed. Shortly after the second meeting, in
August 1992, Daniels observed graffiti on the walls and other objects
of the plant which stated "sexual harasor [sic] Eldo," and "Eldo sex
man."1 Daniels does not know who authored the graffiti and did not
allege that Georgia-Pacific authored or authorized the graffiti.

Daniels alleged that this graffiti caused him to suffer emotional dif-
ficulties, which led to psychological and physiological problems.
Daniels alleges that these problems in turn caused him to contract
pneumonia. Daniels took a leave of absence from work from February
through May 1993.

Daniels returned to work on June 1, 1993. Daniels alleged that new
_________________________________________________________________
1 Similar graffiti also appeared on a barn on Daniels' property at the
same time.

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graffiti appeared on June 3, 1993, that stated "sex man returns."
Again, Daniels does not allege that the graffiti was authored or autho-
rized by Georgia-Pacific. Daniels immediately complained to
Georgia-Pacific officials about the new graffiti and it was removed
the next day. Daniels did not allege that he suffered any injury from
the June 1993 graffiti.

The length of time that the August 1992 graffiti remained on
Georgia-Pacific property is uncertain. In his answer to an interroga-
tory, Daniels alleged that the graffiti was removed one year after he
complained of it, with the exception of graffiti on his locker, which
was removed immediately. In a later affidavit, Daniels averred that
the August 1992 graffiti was not removed until October 1994. Finally,
in his brief on appeal, Daniels alleges that the graffiti remained in
view until October 1995. This later date was not alleged in the district
court records.

In April 1993, Daniels filed a grievance in accordance with the col-
lective bargaining agreement between Georgia-Pacific and the United
Paperworkers International Union alleging that he had been harassed
and seeking compensation for the investigation of Ms. Brown's com-
plaint and the appearance of the graffiti. Georgia-Pacific denied Dan-
iels' grievance and noted that it thought the proper remedy was a
workers' compensation claim. The Union took the grievance to arbi-
tration and the grievance was dismissed. Daniels did not challenge the
arbitrator's decision.

Also in April 1993, the mill's Safety Director told Daniels that he
should file a workers' compensation claim and sent Daniels the claim
forms. At approximately the same time, Daniels contacted an attorney
regarding filing a defamation action against Georgia-Pacific. Daniels
did not pursue the defamation action, even after a reminder from his
attorney, and instead elected to proceed on the workers' compensation
claim. Daniels' counsel voluntarily withdrew the claim because he did
not have a health care provider who would testify that Daniels' inju-
ries were caused by the investigation and graffiti.

Daniels filed the present action in Virginia circuit court alleging
common law slander and insulting words under Va. Code Ann.

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§ 8.01-45 (Michie 1992).2 Georgia-Pacific removed the action to fed-
eral court. Georgia-Pacific then moved for summary judgment based
upon three grounds: (1) that the claims were barred by the applicable
statute of limitations, (2) that Daniels failed to state a claim for defa-
mation, and (3) that the defamation claims were preempted by Section
301 of the Labor Management Relations Act.

After a first hearing on the summary judgment motion, the district
court granted in part and denied in part Georgia-Pacific's motion. The
court held that the claims based upon the August 1992 graffiti were
preempted by federal labor law. The court allowed the claims based
upon the June 1993 graffiti to proceed on the issue of whether the
June 1993 graffiti constituted a republication of the August 1992 graf-
fiti and whether Georgia-Pacific could potentially be liable for inten-
tional and unreasonable refusal to remove the graffiti. The district
court also denied Georgia-Pacific's motion for summary judgment
based upon the argument that the Virginia Workers' Compensation
Act was Daniels' exclusive remedy for the remaining claims. Discov-
ery proceeded and Georgia-Pacific filed a third motion for summary
judgment, arguing that Daniels did not satisfy the requirements of a
defamation claim with respect to the June 1993 graffiti, and that the
claims based upon the June 1993 graffiti were time-barred.

The district court granted Georgia-Pacific's summary judgment
motion and dismissed the case. The court found that based upon Dan-
iels' representation made during the course of discovery, all of his
claims were barred by the applicable statute of limitations and that
Daniels did not allege grounds sufficient to toll the limitations period.
On appeal, Daniels only challenges the district court's rulings on the
statute of limitations bar.

Summary judgment is appropriate when there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. See Fed.
R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
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2 Because actions filed under§ 8.01-45 are "`virtually co-extensive
with the common law action for defamation,'" Dwyer v. Smith, 867 F.2d
184, 195-96 (4th Cir. 1989) (quoting Potomac Valve & Fitting, Inc. v.
Crawford Fitting Co., 829 F.2d 1280, 1284 (4th Cir. 1987)), Daniels'
claims may collectively be referred to as defamation claims.

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48 (1986). In determining whether the moving party has shown that
there is no genuine issue of material fact, we must assess the factual
evidence and all inferences to be drawn therefrom in the light most
favorable to the non-moving party. See Ross v. Communications Sat-
ellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). We review a grant of
summary judgment de novo. See Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). In the present case, we
find that the district court properly granted Defendant's motion.
Because Daniels' appellate brief addresses only the statute of limita-
tions, we limit our review to that issue.

The statute of limitations for defamation actions filed prior to 1995
in Virginia is one year. See Va. Code Ann.§ 8.01-248 (Michie 1992
& Supp. 1997). Daniels filed his action on July 15, 1994. Daniels
advances three arguments to support his assertion that his defamation
action is not barred by the statute of limitations. First, he alleges that
if the August 1992 graffiti claim is barred by the statute of limitations,
the June 1993 graffiti should be considered a republication of the
August 1992 graffiti. Daniels relies upon the holding in Weaver v.
Beneficial Fin. Co., 98 S.E.2d 687, 691 (Va. 1957), that each time
defamatory material is brought to the attention of a third person there
is a new publication. See Weaver, 98 S.E.2d at 691. A separate action
lies for any repetition of the original defamation within the statutory
time. Id.

While a new action accrues with each republication or repetition,
the person liable for the republication under Weaver is the author or
originator of the defamatory material. Id. Daniels does not allege that
Georgia-Pacific is the author of the graffiti. Next, even if the June
1993 graffiti constituted a republication of the August 1992 graffiti,
the statute of limitations would have run prior to Daniels' filing suit.
Daniels did not file his action until July 15, 1994. He stated in the dis-
covery materials that the June 1993 graffiti was removed in early June
1993. Thus, the early June publication or, at the latest, the removal
date would have required Daniels to file suit by early June 1994.

Next, Daniels argues that because the property displaying the graf-
fiti remained under the control of Georgia-Pacific, and Georgia-
Pacific failed to remove it when it had the ability to do so, Georgia-
Pacific is subject to liability for the length of period that the graffiti

                      5
remained. Daniels relies upon a illustration of the Restatement (Sec-
ond) of Torts § 577, illus. 15 (1977). This illustration remarks that a
tavernowner is liable for graffiti which he saw and did not remove
one hour after he became aware of it. The tavernowner was liable for
the graffiti for the hour that he knew of its existence and did not
remove it.

Virginia has not adopted the Restatement (Second) of Torts § 577
as the law for defamation claims. Virginia has not addressed the ques-
tion of property owner liability for graffiti in a defamation context.
The district court reasoned that a property owner's liability should not
be greater than that of the original author. The author is immune from
suit one year after authoring the graffiti. See Morrisey v. William
Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984) (adopting the
single publication rule as Virginia law holding that only one action
for damages may be maintained for a single publication). However,
if the Restatement illustration is adopted, the property owner would
be subject to liability for graffiti it did not author for a longer period
of time than the author. The district court also correctly noted, and the
Restatement illustration may be interpreted to mean, the property
owner's liability accrues shortly after learning of the graffiti. The
Restatement illustration considers only a very short period of time and
may not be read to presume that the action continues to accrue over
a two-year period of time.

The Supreme Court of Virginia has recently discussed when a defa-
mation cause of action accrues. The court found that the cause of
action begins to accrue when the defamation occurred. See Jordan v.
Shands, ___ S.E.2d ___, 1998 WL 211607, *3 (Va. Apr. 17, 1998)
(No. 971316) (citations omitted). In Jordan, a warrant was sworn out
against the plaintiff containing incorrect information that resulted in
the plaintiff being taken into custody and an order for her to appear
in a state court on a later date. At the court hearing, the incorrect
information on the warrant was once again discovered and the charges
against her dismissed. Id. The plaintiff argued that the one-year stat-
ute of limitations for the defamation claim should run from the date
of the court appearance. The court held that any cause of action for
the defamation claim accrued on the date she alleged the defamatory
acts to have occurred. Id. With this decision, we find that, although
the Supreme Court of Virginia has not ruled upon this exact question,

                     6
it would likely decide that the cause of action against Georgia-Pacific
accrued shortly after it received notice of the graffiti and did not
remove it. Because Georgia-Pacific knew of the graffiti in early June
1993, the one-year statute of limitations ran before Daniels' complaint
was filed in August 1994.

Finally, Daniels argues that the statute of limitations did not run
because it was tolled due to Georgia-Pacific's obstruction in filing the
action. Under Va. Code Ann. § 8.01-229(D) (Michie 1992 & Supp.
1997), if the defendant obstructs the filing of an action, the time the
obstruction lasts is not counted toward the running of the statute. Dan-
iels argues that the limitation period should have been tolled because
he decided to file a workers' compensation claim at Georgia-Pacific's
suggestion. A statute of limitations will only be tolled for obstruction
when the defendant engages in fraudulent behavior involving moral
turpitude which is intended to conceal a cause of action. See Horn v.
Abernathy, 343 S.E.2d 318, 321 (Va. 1986) (citations omitted). Dan-
iels claims that the limitations period should be tolled because the
safety director of the mill told Daniels that he would be paid workers'
compensation. By Daniels' own account he had knowledge of the
right to file a defamation action because he had consulted with an
attorney, and the attorney sent him a reminder that he had not yet filed
suit. Daniels knew that Georgia-Pacific was contesting his workers'
compensation claim; therefore he cannot argue that Georgia-Pacific
assured him that the claim would be paid. We therefore find that the
district court correctly found that the tolling provisions of § 8.01-
229(D) do not apply in this case.

We therefore affirm the district court judgment. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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