                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0107n.06
                            Filed: February 9, 2006

                                           No. 05-5268

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


WENDY WOODRUFF,                        )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE WESTERN
                                       )                 DISTRICT OF TENNESSEE
DENNIS OHMAN,                          )
                                       )                         OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: SILER, BATCHELDER, and MOORE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Dennis Ohman, Ph.D.,

(“Ohman”) appeals the district court’s order finding him liable for defamation. Plaintiff-Appellee

Wendy Woodruff, Ph.D., (“Woodruff”) is a microbiologist from Canada who worked in Ohman’s

laboratory conducting genetic research. Ohman and Woodruff had a dispute regarding Woodruff’s

salary and other issues, and Ohman sent letters that were critical of Woodruff to Woodruff’s funding

institution and to the Immigration and Naturalization Service (“INS”). Statements in these letters

are the source of Woodruff’s defamation claim. Ohman argues that the statements are not

defamatory and that the district court erred in granting Woodruff punitive damages. For the reasons

discussed below, we AFFIRM the district court’s judgment in favor of Woodruff.
I. BACKGROUND




      2
        Woodruff, a Canadian citizen, obtained a doctorate degree in microbiology in 1988. In 1989,

Ohman invited Woodruff to work in his laboratory at the University of Tennessee, Memphis

(“University”). When Woodruff and Ohman began discussing Woodruff’s compensation, they

agreed to a salary of $27,000.00 per year, to be paid from Ohman’s National Institutes of Health

(“NIH”) grant. Woodruff and Ohman had also applied for a fellowship from the Medical Research

Council of Canada (“MRC”), and in the midst of their salary discussions, they found out that the

MRC was awarding them the fellowship. Ohman felt that Woodruff’s salary would be too high if

she received both the $27,000.00 and the MRC funds. In the course of determining how to balance

the two funding sources, Woodruff told Ohman that she would only receive part of the MRC funds

due to Canadian regulations. Woodruff testified that when she later found out that she would be

receiving a larger portion of the MRC fellowship than she first anticipated, she informed Ohman of

this fact.

        In April 1992, Ohman discovered that Woodruff was receiving more of the MRC funds than

he had realized. Ohman was concerned about Woodruff’s salary, and he contacted Dr. Terrance

Cooper (“Cooper”), the chairman of the microbiology department at the University. Ohman drafted

a memorandum to Woodruff stating that she would be removed from his grants due to her high

salary, and he showed this memorandum to Cooper when they met to discuss the situation. Acting

upon Cooper’s advice, Ohman gave a draft of the memorandum to Woodruff on April 30, 1992, and

he instructed her to let him know if there were any problems with it. Woodruff and Cooper then met

to discuss the situation, and Cooper informed Woodruff that her salary could be in violation of

University policy. When he did not get a response from Woodruff, Ohman sent a copy of the

memorandum to the assistant chair of the department and requested that Woodruff’s status as a


                                                 3
research associate be changed to “post-doc” and that her salary from his grant be terminated. The

next day, Woodruff told University officials that Ohman had sexually harassed her.

       On May 4, 1992, Ohman was informed that the Dean of the College of Medicine (“Dean

Summitt”) had ordered that no action was to be taken in the salary dispute with Woodruff. On May

7, 1992, Ohman delivered a draft memorandum to Cooper that he intended to be sent to the MRC,

and Cooper then gave the memorandum to Dean Summitt. At some point during this time, Ohman

began hearing rumors that Woodruff was initiating legal action against him. Ohman sent out two

letters — to the MRC and the INS — on May 25, 1992.1 J.A. at 364 (Letter from Dennis Ohman,

Ph.D., to Pat Evans (“MRC Letter”)); J.A. at 367 (Letter from Dennis Ohman, Ph.D., to Immigration

and Naturalization Service (“INS Letter”)). The MRC Letter discussed the issues pertaining to

Woodruff’s salary, described Woodruff’s poor performance,2 and recommended against renewing

Woodruff’s fellowship. A copy of the MRC Letter was attached to the INS Letter, which withdrew

Ohman’s previous support for Woodruff’s application for permanent residency. Dean Summitt was

displeased with Ohman’s actions in sending these letters, and Ohman sent him a letter of apology

on August 5, 1992.

       In 1992, Woodruff took a leave of absence and spent time conducting research at other

laboratories. Woodruff filed a charge with the Equal Employment Opportunity Commission




       1
         On cross examination, Ohman stated that Cooper had told him that the letter should be sent
to the dean “for approval.” J.A. at 267 (Trial Tr. at 299) (Ohman Test.). Ohman added material to
the letter that was not in the version originally submitted to Dean Summitt.
       2
         Shortly after Woodruff began working in Ohman’s laboratory, Ohman became concerned
about Woodruff’s productivity. He hired a graduate student to conduct research in an area similar
to that of Woodruff, which caused tension with Woodruff. Ohman testified that Woodruff refused
to cooperate with him in his efforts to increase her productivity.

                                                4
alleging sexual discrimination and retaliation on December 21, 1992. On January 4, 1993, Woodruff

met with several University administrators to discuss her concerns. During this meeting, the

administrators discovered that Woodruff’s immigration status was such that the University could

no longer lawfully employ her. Woodruff received a termination letter the next day.

       Woodruff filed a complaint in the United States District Court for the Western District of

Tennessee on May 20, 1993. The complaint included claims filed pursuant to 42 U.S.C. § 1983 that

were based upon alleged violations of Woodruff’s rights under the Equal Protection Clause, the Due

Process Clause, and the First Amendment. Woodruff also brought a claim pursuant to 42 U.S.C.

§ 1985 and a state-law claim of defamation. On July 14, 1993, Woodruff filed an amended

complaint which included claims of sex discrimination and retaliation under Title VII. Cooper and

the University filed a motion for partial dismissal, and Ohman filed a motion to dismiss. The district

court issued an order denying the motions to dismiss with regard to the § 1985 claim and the

defamation claim and dismissing the Title VII claims as to Ohman and Cooper in their individual

capacities. The claims for monetary damages pursuant to § 1983 were dismissed pursuant to the

Eleventh Amendment.

       The district court conducted a bench trial in September and October 1996. On June 12, 1997,

the district court granted the defendants’ motion for judgment as a matter of law on Woodruff’s

state-law defamation claim and accompanying demand for punitive damages and denied the

defendants’ motion for judgment as a matter of law as to Woodruff’s claims under § 1983, § 1985,

and Title VII. With regard to the defamation claim, the district court held that Woodruff was a

public official, and that the statements did not rise to the level of defamation under the actual malice

standard. On September 30, 1998, the district court entered an order dismissing all of the claims


                                                   5
against Cooper and finding Ohman and the University liable under Title VII for gender

discrimination and retaliation. In this order, the district court granted Woodruff relief in the form

of back pay and benefits, front pay, compensatory damages, reimbursement of medical expenses,

and injunctive relief. Ohman appealed to this court, and we held that the district court erred in

dismissing Woodruff’s § 1983 claim alleging gender discrimination and that the district court did

not demonstrate that the disparate treatment of Woodruff was based on her gender as required in a

Title VII action. Woodruff v. Ohman, 29 F. App’x 337, 343, 344-46 (6th Cir. 2002). We also

reversed the district court’s judgment finding that Woodruff was a public official. Id. at 347.

       As instructed by this court, the district court conducted further proceedings on remand. The

district court concluded that “[Woodruff] successfully proved a prima facie case of defamation.”

J.A. at 76 (Findings of Fact and Conclusions of Law (“Findings of Fact”) at 24). The district court

further found that Woodruff was entitled to actual damages as well as an award of punitive damages.

On November 1, 2004, the district court entered an order granting Woodruff $50,000.00 in

compensatory damages and $125,000.00 in punitive damages. J.A. at 81 (Order). Ohman timely

appealed this order.

                                          II. ANALYSIS

A. Standard of Review

       “On an appeal from a judgment entered after a bench trial, we review the district court’s

findings of fact for clear error and its conclusions of law de novo. When the factual findings involve

credibility determinations, we afford great deference to the district court’s factual findings.”

Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005) (internal citation omitted).

We will review de novo the issue of whether the statements could be understood as defamatory (a


                                                  6
question of law in Tennessee), and we will review for clear error the issue of whether the statements

were in fact defamatory. See Memphis Publ’g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn. 1978)

(“Whether the news article . . . was, in fact, understood by readers in its defamatory sense is

ultimately a question for the jury. But preliminary determination of whether the article is [c]apable

of being so understood is a question of law to be determined by the court.”).

B. The Statements

        The test for establishing a prima facie case of defamation of a non-public figure in Tennessee

is as follows:

        [T]he plaintiff must establish that: 1) a party published a statement; 2) with
        knowledge that the statement is false and defaming to the other; or 3) with reckless
        disregard for the truth of the statement or with negligence in failing to ascertain the
        truth of the statement.

Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) (citing RESTATEMENT (SECOND)

OF   TORTS § 580B (1977)); see also Press, Inc. v. Verran, 569 S.W.2d 435, 442 (Tenn. 1978)

(adopting § 580B as “the law of this jurisdiction”). “‘Publication’ is a term of art meaning the

communication of defamatory matter to a third person.”3 Sullivan, 995 S.W.2d at 571.

        “For a communication to be libelous, it must constitute a serious threat to the plaintiff’s

reputation.” Stones River Motors, Inc. v. Mid-South Publ’g Co., 651 S.W.2d 713, 719 (Tenn. Ct.

App. 1983). A statement that is merely “annoying, offensive or embarrassing” to the plaintiff is not

defamatory. Id. Rather, “[t]he words must reasonably be construable as holding the plaintiff up to

public hatred, contempt or ridicule,” and “[t]hey must carry with them an element ‘of disgrace.’”

Id. (quoting W. PROSSER, LAW OF TORTS, § 111, at 739 (4th Ed. 1971)). The issue of whether a



        3
         Ohman does not dispute the issue of publication in this case. Br. Appellant at 23 n.4.

                                                  7
statement could be understood as defamatory is a question of law. Pate v. Serv. Merch. Co., 959

S.W.2d 569, 574 (Tenn. Ct. App. 1996), cert. denied, 522 U.S. 821 (1997). “In determining whether

the published words are reasonably capable of such a meaning, the courts must look to the words

themselves and are not bound by the plaintiff’s interpretation of them.” Stones River, 651 S.W.3d

at 719. “Allegedly defamatory statements should be judged within the context in which they are

made. . . . They should be read as a person of ordinary intelligence would understand them in light

of the surrounding circumstances.” Revis v. McClean, 31 S.W.3d 250, 253 (Tenn. Ct. App. 2000)

(internal citation omitted).

        Woodruff bears the burden of proof in establishing defamation. Memphis Publ’g, 569

S.W.2d at 420. In order to satisfy this burden, she must prove that the statements were false. Stones

River, 651 S.W.2d at 719; Ali v. Moore, 984 S.W.2d 224, 229 (Tenn. Ct. App. 1998). Truth may

be a defense to a charge of defamation, “so long as the ‘sting’ (or injurious part) of the statement is

true.” Stones River, 651 S.W.2d at 719. “It is no defense whatever that individual statements within

the article were literally true. Truth is available as an absolute defense only when the defamatory

meaning conveyed by the words is true.” Memphis Publ’g, 569 S.W.2d at 420.

        The district court found that seven of the statements in the MRC and INS Letters were

defamatory. Although we do not agree with all of the district court’s conclusions, we affirm the

judgment in favor of Woodruff because some of the statements do meet the standards articulated

above. For example, Ohman stated that “[f]or the last 2 and one-half years she has spent on this

project, she has not been able to accumulate enough data for a single paper, and is still far from it.”

J.A. at 365 (MRC Letter). It is reasonable to interpret this statement as defamatory, because, as the

district court stated, “[i]t directly injures Plaintiff in her profession, by implying that she is unable


                                                   8
to perform the scientific work at issue and that she is not a competent scientist.” J.A. at 73 (Findings

of Fact at 21). An individual with Woodruff’s level of education and achievement would likely be

viewed with contempt if she was not able to perform the basic duties of her job, and this is thus

clearly related to her professional reputation.

        Ohman asserts that this statement is true. As support, he points to his testimony regarding

Woodruff’s lack of productivity, and he states that there was no evidence that Woodruff was close

to publishing a paper at the time that this letter was sent. Br. Appellant at 26-28. It may be true that

Woodruff was unproductive; however, there is evidence in the record that she accumulated sufficient

data for a paper. Woodruff testified that they had “already presented [the research] as an abstract”

at the time of the letter, and she stated that “I didn’t think that I was very far . . . I thought that it was

within easy grasp . . .” J.A. at 334 (Trial Tr. at 482) (Woodruff Test.). Furthermore, Woodruff

explained that the gene sequence upon which two later papers were based was identified by June

1991, and she “spent the subsequent time fine tuning the sequencing and repeating things.” J.A. at

340 (Trial Tr. at 585) (Woodruff Test.). In light of this evidence, the district court’s conclusion that

this statement is false and defamatory is not clearly erroneous.

        We also agree with the district court that Ohman acted with the requisite fault in publishing

the statements. As stated in Memphis Publishing, Ohman must have at least been negligent in order

to be liable for defamation. Memphis Publ’g, 569 S.W.2d at 418. “[T]he appropriate question to

be determined from a preponderance of the evidence is whether [Ohman] exercised reasonable care

and caution in checking on the truth or falsity and the defamatory character of the communication

before publishing it.” Id. If Woodruff had already presented her research as an abstract, then




                                                      9
Ohman must have known that the above statement was false and that such a statement would harm

Woodruff’s career.4

C. Punitive Damages

       “Unless ‘actual malice’ is shown, punitive damages are not permitted.” Myers v. Pickering,

959 S.W.2d 152, 164 (Tenn. Ct. App. 1997) (citing Memphis Publ’g, 569 S.W.2d at 421). The

Tennessee Court of Appeals explained the actual malice standard as follows:

       The concept of actual malice in defamation cases connotes more than personal ill
       will, hatred, spite, or desire to injure. Rather, it is limited to statements made with
       knowledge that they are false or with reckless disregard to their truth or falsity.
       Determining whether a defendant acted with reckless disregard requires the finder
       of fact to determine whether the defendant “in fact entertained serious doubts as to
       the truth of his [or her] publication.”

Tomlinson v. Kelley, 969 S.W.2d 402, 405-06 (Tenn. Ct. App. 1997) (quoting Trigg v. Lakeway

Publishers, Inc., 720 S.W.2d 69, 75 (Tenn. Ct. App. 1986)) (internal citations omitted). “The

question whether there is sufficient evidence in the record to permit a finding of actual malice is a

question of law.” Cobb v. Time, Inc., 278 F.3d 629, 637 (6th Cir.) (citing Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485, 510-11 (1984)), cert. denied, 537 U.S. 878 (2002).

“[J]udges, as expositors of the Constitution, must independently decide whether the evidence in the

record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is

not supported by clear and convincing proof of ‘actual malice.’” Id. (quoting Bose, 466 U.S. at 511).

In conducting this independent review, “[c]redibility determinations made by the trier of fact are

reviewed under a clearly erroneous standard.” Id.


       4
         The district court awarded Woodruff compensatory damages for “her personal humiliation,
mental anguish, and suffering . . .” J.A. at 77 (Findings of Fact at 25). Ohman did not challenge in
this appeal the amount of the damages awarded, and our holding that Ohman is liable for defamation
does not affect the district court’s determination as to this issue.

                                                 10
       The district court concluded that Ohman acted with sufficient recklessness to justify

awarding Woodruff punitive damages. J.A. at 78 (Findings of Fact at 26). We agree. At trial,

Ohman “testified that he felt he had ‘a[n] ethical, and moral, and perhaps even legal obligation’ to

send both letters.” J.A. at 78 (Findings of Fact at 26). Yet, in his August 5, 1992, letter of apology

to Dean Summitt, Ohman “explains having sent the MRC letter by referrring to the threat of

litigation that he felt every day, his state of fear, and the demoralization of his laboratory’s

personnel, not because of any ethical, moral, or legal obligations.” J.A. at 78 (Findings of Fact at

26). See also J.A. at 369 (Letter from Ohman to Dean Summitt dated Aug. 5, 1992). “The [district

court] specifically found that [Ohman] wanted [Woodruff] out of his lab by May 25, 1992, and it

appears most likely that this was the reason that he sent both May 25 letters.” J.A. at 78 (Findings

of Fact at 26). By putting Woodruff’s professional and immigration status at great risk for

questionable motives, Ohman acted recklessly.

                                       III. CONCLUSION

       For the reasons discussed above, we AFFIRM the district court’s judgment in favor of

Woodruff.




                                                 11
