                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-1131NE
                                  _____________

Michael Malone,                         *
                                        *
             Appellant,                 *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the District of
                                        * Nebraska.
Eaton Corporation,                      *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: June 14, 1999
                                 Filed: August 11, 1999
                                  ___________

Before RICHARD S. ARNOLD and LOKEN, Circuit Judges, and BYRNE,1 District
      Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.


      Michael Malone brought this suit under Title VII, 42 U.S.C. § 2000e et seq.,
Neb. Rev. Stat. § 48-1101 and § 20-148, and Nebraska common law against his former
employer, Eaton Corporation, alleging he was discriminated against because of his sex,



      1
       The Hon. William Matthew Byrne, Jr., United States District Judge for the
Central District of California, sitting by designation.
and was defamed after his termination. The District Court2 granted Eaton summary
judgment because Malone failed to produce sufficient evidence to rebut Eaton's valid
business reason for the termination, and because Malone failed to show that Eaton
acted with malice in describing the reason for the termination. We affirm.

                                           I.

       In reviewing a grant of summary judgment, we apply the same standard used by
the District Court: whether there is a genuine issue of material fact, and whether the
moving party is entitled to a judgment as a matter of law. We briefly outline the facts
of the case, resolving all factual disputes in favor of the non-moving party, and giving
him the benefit of all reasonable inferences.

       Malone began working at Eaton in June 1993. He was promoted to the position
of shift supervisor in October 1996. After his promotion, Malone was questioned by
his supervisor, Product Line Manager Ron Fowler, concerning rumors at the plant that
Malone was having an intimate relationship with Ann Ables, a worker who reported
directly to Malone. He denied any such relationship. Malone was warned that Eaton
did not permit intimate relationships between supervisors and direct reports and was
advised not to do anything to provide grounds for such rumors. Malone also had a
conversation with Human Resources Manager Tim Krohn concerning the same matter.

      In March 1997, Suggestion Coordinator Luci Donaldson reported to Human
Resources Manager Krohn that Malone told her he was having an affair with Lynette
Gilming. Gilming worked under Malone's direct supervision. Donaldson also told
Krohn that Forge Shop Supervisor Jim Williamson and Line Supervisor Doug Hild
were present at the time Malone admitted to the affair. On March 20, 1997, Malone


      2
      The Hon. Richard G. Kopf, United States District Judge for the District of
Nebraska.

                                          -2-
met with Krohn and Product Line Manager Fowler in Krohn's office. Malone was
asked if he was having an intimate relationship with Gilming. He was told that Eaton
was concerned about potential liability from a sexual-harassment claim if his
relationship with Gilming were to sour. He was also told that if he admitted to the
relationship, he would be offered a non-supervisory position with the company, and that
no disciplinary action would be taken against Gilming. He was further warned that if
he denied the relationship, and it was later discovered that he had lied, he would be
terminated. Malone lied. In his deposition, Malone explained that he denied that he
was having an intimate relationship with Gilming because he "didn't think it was any
of their business."

       Later that day, Krohn met with Williamson, and Fowler met with Hild, the two
other supervisors who were present when Malone admitted the affair to Donaldson.
Both confirmed that Malone had told them that he was having an intimate relationship
with Gilming. The next day, Krohn and Fowler met again with Malone and told him
the results of their investigation. Malone was terminated.

       Following the termination, Fowler conducted a meeting with production
supervisors and engineers to reinforce the plant policy of prohibiting intimate
relationships between supervisors and direct reports. The accounts of the meeting are
based on the various recollections of those present. Malone claims, and we assume for
present purposes, that Fowler told those gathered that Malone had been "fired for a
form of sexual harassment."




                                          -3-
                                           II.

       Malone's suit alleged that his termination was the result of gender discrimination
in violation of Title VII and the Nebraska Fair Employment Practices Act.3 Malone,
therefore, was required to satisfy the familiar analytical framework set out by the
Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The problem,
however, was that he could not offer enough evidence to permit a reasonable jury to
conclude that Eaton's stated reason for his discharge, namely that he was terminated for
engaging in an improper relationship with a subordinate, and then lying about it, was
a mere pretext for unlawful gender discrimination.

       In an attempt to meet this burden, Malone claimed that a female supervisor also
violated company policy by having intimate relationships with subordinates, but was
not disciplined. According to Malone, when this female supervisor was questioned by
management about rumors and anonymous notes and telephone calls that indicated she
was having an affair with a subordinate, she simply denied the allegations, and the
matter was not pursued any further. The fact that Eaton treated her more leniently,
Malone contended, was evidence that he was discriminated against because of his
gender.4

      We disagree. There were significant and undisputed differences between this
female supervisor's alleged misconduct and Malone's admitted violations of company


      3
        The Nebraska statute is patterned after the federal statute, and Nebraska courts
look to federal decisions when construing the Nebraska Act. Airport Inn v. Nebraska
Equal Opportunity Comm., 217 Neb. 852, 353 N.W.2d 727 (1984).
      4
       On appeal, Malone also argues that the fact that Gilming was not disciplined is
evidence of discrimination. We disagree. Gilming was not a supervisor. The company
may reasonably place most of the burden of enforcing its policy on supervisors who are
to blame.

                                          -4-
policy. Malone admitted his affair to three other supervisory employees. One of these
employees reported the incident, in person, to management. After Malone denied the
relationship, the other two employees confirmed that Malone had told them he was
intimately involved with Gilming. In the case of the female supervisor, Eaton had only
rumors and anonymous reports that she had violated company policy. Nevertheless,
Eaton questioned her about the situation, and she denied any wrongdoing. This was
similar to the treatment Malone received when Eaton heard rumors that he was
involved with Ann Ables. In that case, Malone was approached by management on the
basis of rumors, and when he denied the allegations, the matter was dropped.
Furthermore, Eaton had strong evidence that Malone had lied to management
investigating the Gilming report even after he was warned that dishonesty would be
grounds for his dismissal. Eaton had no evidence that the female supervisor had been
dishonest. Because of these differences, Malone could not establish, as a matter of
law, that he was similarly situated to the female supervisor and could not use the
difference between Eaton's responses to the reports as evidence of discrimination.

                                         III.

       Malone alleged a cause of action for defamation under the common law of
Nebraska. The basis of this claim was the statement made by Ron Fowler, the Product
Line Manager, at a meeting of supervisors and engineers which announced that Malone
had been fired "for a form of sexual harassment." The purpose of this meeting was to
reiterate Eaton's policy against supervisor-subordinate relationships, warn the other
supervisors about the consequences of violating the policy, and underscore the risk of
potential liability from a sexual-harassment claim. This communication was between
parties sharing a common interest in the subject matter and is entitled to a qualified
privilege under Nebraska law. Turner v. Welliver, 226 Neb. 275, 287, 411 N.W.2d
298, 307 (1987). Therefore, in order for Malone to recover he must prove that the
communication was made with malice. Id. Malice is defined as "hate, spite, or ill will"
toward the person about whom a statement has been published. Young v. First United

                                          -5-
Bank of Bellevue, 246 Neb. 43, 48, 516 N.W.2d 256, 259 (1994). There is no
evidence that Fowler acted with malice in announcing Malone's termination in the terms
alleged. The fact that rumors of Malone's discharge may have made it around the plant
and into the community does not subject Eaton to liability. The communication alleged
in the complaint is protected by privilege and is not actionable.

                                         IV.

       We have fully considered Malone's other arguments and find them to be without
merit. The judgment is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
