        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                  FILED
                                                                March 15, 2012

                          Nos. 10-31266 & 11-30306              Lyle W. Cayce
                                                                     Clerk

SHANE BELLARD,

             Plaintiff - Appellant

v.

SID J. GAUTREAUX, III, Individually and in his official capacity as Sheriff of
East Baton Rouge Parish, State of Louisiana,

             Defendant - Appellee



                Appeals from the United States District Court
                     for the Middle District of Louisiana


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Appellant Shane Bellard was dismissed from the East Baton Rouge police
training program after falling asleep in class and purportedly making
inappropriate sexual comments. He demanded a name-clearing hearing from the
East Baton Rouge Parish Sheriff, Sid Gautreaux, but was denied. Bellard then
brought federal and state law claims against the Sheriff for his failure to grant
a name-clearing hearing and for potentially defamatory statements made
regarding Bellard’s dismissal. The district court granted the Sheriff summary
judgment on all of Bellard’s claims. Bellard appeals the dismissal of his federal
                           Nos. 10-31266 & 11-30306

and state law claims. On appeal, we AFFIRM the ruling of the district court on
all points.
                        FACTS AND PROCEEDINGS
      Shane Bellard was employed by the East Baton Rouge Sheriff’s Office as
a deputy sheriff and was enrolled as a cadet in the Capital Area Regional
Training Academy (“CARTA”). During training, Bellard was not a model cadet
and showed up late and fell asleep in class on multiple occasions. He was also
sent home from the firing range for taking the prescription medication Ambien
while operating firearms. After three violations for tardiness, intoxication at the
range, and sleeping in class, Captain Venable, head of CARTA, recommended
that he be excused from the academy.
      Bellard was sent to Human Resources (“HR”) because of his problems. Two
female students, Carla Coburn and Holly Thompson, also came forward with
complaints about his behavior. According to their deposition testimony, Bellard
made comments of a sexual nature to them. A few weeks after entering the
training program, Bellard was eating lunch at the Academy when Coburn asked
him what he was eating. Bellard responded that he was eating a MRE (Meal
Ready to Eat) and that he ate MRE’s because “it makes you hard.” According to
Coburn, he made this statement while gesturing with his right arm in a manner
she took to be sexual. Thompson took the gesture to mean “his manhood.”
Bellard admits making this comment but denies he intended it to be sexual.
Upon further questioning, Coburn and Thompson explained that Bellard had
previously made them feel uncomfortable by insinuating that he knew they were
alone in their homes, and commenting how nice they looked in their uniforms.
Upon learning of this information, Venable instructed Bellard to report to HR
again. After being interviewed by HR personnel, he was issued a letter of
termination dated January 24, 2008. The letter stated he was being terminated
for sexual harassment.


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                            Nos. 10-31266 & 11-30306

      Bellard then informed his father, Dennis Bellard, a former Baton Rouge
police officer, of his termination. He told Dennis the reasons for the termination
as well as the specific allegations made by Coburn and Thompson. Bellard also
contacted Mike Knaps, a family friend and the Chief of Police in Baker,
Louisiana. Bellard also told Knaps he was fired for sexual harassment and
tardiness. Bellard asked Knaps to speak to the Sheriff on his behalf, which
Knaps did. During their conversation, Knaps pushed the Sheriff to let Bellard
resign rather than being fired. The Sheriff agreed, so long as Bellard did so in
a timely fashion. According to Knaps, the Sheriff never spoke with him about the
specific allegations of sexual harassment. Bellard ultimately rejected the offer
of resignation in the hopes of pursuing civil damages.
      Dennis Bellard also contacted two people about his son’s termination. First
he contacted Knaps, who told him that his son was terminated because of
tardiness and sexual harassment. On his son’s behalf, Dennis Bellard also
contacted the Sheriff about his son’s termination, although the two did not talk
on the phone until weeks after the termination.
      In addition to the conversations that were carried out on his behalf, Shane
Bellard contacted Chief LeDuff, the Chief of Police of the Baton Rouge Police
Department. This conversation forms the basis of Bellard’s suit, but its
substance is in dispute. Bellard claims that LeDuff stated that he had already
heard of Bellard’s termination prior to their conversation. LeDuff states that he
did not hear anything about the termination until the conversation where
Bellard told him that he was terminated and had been accused of sexual
harassment, sleeping in class, and “inappropriate contact or works [sic]” with a
female. LeDuff stated in his deposition that he believed Bellard was calling
about the possibility of employment and that he told Bellard that he would have
to call the Sheriff’s office to find out more information. LeDuff called the Sheriff’s
office and was told that someone would get back to him. Eventually someone


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                           Nos. 10-31266 & 11-30306

called him back and discussed Bellard’s termination. According to LeDuff’s
testimony, this person was not the Sheriff. Finally, LeDuff testified during his
deposition that Bellard’s testimony about their conversation is incorrect and that
if he did state to Bellard that he had heard about the termination from the
Sheriff prior to hearing it from Bellard, it was only because he was “maybe
fishing for information” from Bellard.
      Through counsel, Bellard requested a name-clearing hearing to “prove his
innocence on the charges for which he was fired and clear his name.” He made
his formal request on June 24, 2008. The request was rejected the next day by
the Sheriff’s counsel on the basis of Bellard’s at-will employment under
Louisiana law. Bellard brought claims against the Sheriff in both his official and
personal capacities under 42 U.S.C. § 1983. Bellard claims he was deprived of
a federal liberty interest under the Louisiana and U.S. Constitutions when he
was denied a name-clearing hearing after being terminated. Bellard also
asserted state law defamation claims against the Sheriff in his individual and
official capacities alleging that the Sheriff orally published sexual harassment
allegations against him to persons outside of the Sheriff’s office. Bellard sought
declaratory and injunctive relief, compensatory and punitive damages, and
reinstatement of his employment.
      The Sheriff moved for summary judgment which was granted in part and
denied in part. Summary judgment was granted for the Sheriff in his individual
and official capacities on the federal constitutional claims and granted for the
Sheriff in his individual capacity on Bellard’s state constitutional claims. The
motion for summary judgment was denied for the official capacity state
constitutional claims. In addition, the Sheriff’s motion was granted on the state
law defamation claims in his individual capacity, but denied in his official
capacity. Bellard’s claim for punitive damages, reinstatement, lost pay, and
benefits were dismissed.


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                           Nos. 10-31266 & 11-30306

      After the district court’s ruling, Bellard moved to alter or amend the prior
ruling under Federal Rule of Civil Procedure 59(e). The district court altered the
opinion to reinstate his federal liberty interest claims against the Sheriff in his
individual capacity, subject to further development of the record regarding Chief
LeDuff’s conversations with personnel in the Sheriff’s office. The court also
reinstated Bellard’s official and individual capacity claims under Louisiana
constitutional law and his punitive damages claims under § 1983.
      After the deposition of Chief LeDuff and supplemental briefings, the
district court dismissed all of Bellard’s remaining claims. The district court’s
decision hinged primarily on the conclusion that Bellard’s statement that LeDuff
told him he had already spoken with the Sheriff’s office before their own
conversation was double hearsay and as such was not competent evidence for
summary judgment. There was no evidence that the information regarding his
termination was disseminated by anyone other than Bellard himself or his
agents. Bellard appeals.
           STANDARD OF REVIEW AND APPLICABLE LAW
      We review a district court’s ruling on a motion for summary judgment de
novo and apply the same legal standards as the district court. Condrey v.
SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). Summary judgment is
proper pursuant to Rule 56 of the Federal Rules of Civil Procedure “if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To withstand a motion
for summary judgment, a plaintiff must show that there is a genuine issue for
trial by presenting evidence of specific facts. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-49 (1986). Conclusory allegations and unsubstantiated assertions



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                           Nos. 10-31266 & 11-30306

will not satisfy the plaintiff’s burden. See Grimes v. Tex. Dep’t of Mental Health,
102 F.3d 137, 139-40 (5th Cir. 1996). Finally, and especially relevant to this case,
on a motion for summary judgment, the evidence proffered by the plaintiff to
satisfy his burden of proof must be competent and admissible at trial. Martin v.
John W. Stone Oil Distrib., Inc, 819 F.2d 547, 549 (5th Cir. 1987).
                                 DISCUSSION
A. Hearsay
      The district court determined that Bellard’s statement that LeDuff told
him he had already heard about Bellard’s termination before their conversation
was double hearsay and was prohibited from consideration on a motion for
summary judgment. The district court further explained that it could be used as
impeachment evidence should LeDuff take the stand. Bellard appeals this ruling
by asserting that it is admissible hearsay and that the district judge’s sua sponte
ruling of hearsay was improper.
      Bellard first argues that the supposed statement by LeDuff is admissible
hearsay because it fits into one of the hearsay exceptions pursuant to Federal
Rules of Evidence Rule 801(d)(2). 801(d)(2) provides that statements made by a
party-opponent are not hearsay if it is: “(A) the party’s own statement, in either
an individual or representative capacity or . . . (D) a statement by the party’s
agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship.” Additionally, Rule
805 provides that “Hearsay included within hearsay is not excluded under the
Hearsay Rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these Rules.” Bellard claims his
testimony about LeDuff’s comments should be admitted as double hearsay with
the first step–the conversation between LeDuff and the Sheriff–an admission by
a party opponent, and the second step–the conversation between Bellard and



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                            Nos. 10-31266 & 11-30306

LeDuff–non-hearsay because it is not offered to show the fact of the matter
asserted.
      Bellard is correct on his first assertion. The first prong, the purported
statement from the Sheriff to LeDuff, would normally be considered hearsay, but
is admissible non-hearsay under Rule 801(d)(2)(D) as an admission by a party-
opponent. If LeDuff were to testify, this statement would be admissible.
However, the conversation between Bellard and LeDuff in which Bellard claims
that LeDuff told him that he had already heard from the Sheriff about the
incident is textbook hearsay. Bellard is attempting to use his own testimony to
show that the Sheriff had talked to LeDuff about the incident, before LeDuff and
Bellard talked about it. Bellard’s purpose for introducing his conversation with
LeDuff is to show that the Sheriff told LeDuff of Bellard’s accusations prior to
Bellard and Leduff’s conversation. Bellard’s only evidence on this point is his
own recollection of his conversation with LeDuff. He is trying to admit evidence
of his own recollection of what someone else said in a conversation with him. His
assertion that such evidence is not hearsay is unfounded. This is hearsay and
does not fit any hearsay exceptions. Although Bellard is correct that such
testimony could be used to impeach LeDuff, impeachment evidence is not
competent evidence for summary judgment. United States v. Glassman, 562 F.2d
954, 958 (5th Cir. 1977).
      Bellard also argues that the district judge should not have ruled on this
issue sua sponte without briefing before the court and should have considered
the hearsay evidence because it was not objected to by the defendant. Although
Bellard points out that the law in the Fifth Circuit is that “unobjected to hearsay
may be considered by the trier of fact for such probative value as it may have,”
Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 275 (5th Cir. 1998), he
incorrectly characterizes this as a requirement rather than permission to
consider such evidence.

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                            Nos. 10-31266 & 11-30306

      Bellard asserts, but does not point to any cases in this circuit, that
unobjected to hearsay should be included in deciding a motion for summary
judgment. The standards for summary judgment which state only competent
evidence can be used in deciding the motion weigh against this reading. Further,
this court on review is permitted to correct the admission of unobjected to
hearsay in the interest of fairness. Peaches Entm’t v. Entm’t Repertoire, 62 F.3d
690, 694 (5th Cir. 1995). It would be odd to prohibit a district court to correct the
error and make a judgment as to competency of the evidence in the absence of
a hearsay objection but permit this court to correct the error on appeal. Such a
rule would run counter to the usual standard permitting the trial court to correct
its own errors.
      Because we find the evidence in question was hearsay and that the district
court was permitted to find it to be hearsay despite the lack of discussion of
hearsay prior to the district court’s initial opinion, we reject Bellard’s appeal on
this point.
B. Bellard’s Federal Liberty Interest
      Bellard alleges that the Sheriff is liable in his official and individual
capacities for a violation of a Fourteenth Amendment liberty interest based on
the Sheriff’s denial of a name-clearing hearing to Bellard. A public employee,
even an at-will employee, has a constitutional right to notice and an opportunity
to be heard when the employee is “discharged in a manner that creates a false
and defamatory impression about him and thus stigmatizes him and forecloses
him from other employment opportunities.” Bledsoe v. City of Horn Lake, 449
F.3d 650, 653 (5th Cir. 2006). This court employs a seven-element
stigma-plus-infringement test to determine whether § 1983 allows a government
employee a remedy for deprivation of liberty without notice or the opportunity
for a name-clearing hearing. “The plaintiff must show: (1) he was discharged; (2)
stigmatizing charges were made against him in connection with the discharge;

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(3) the charges were false; (4) he was not provided notice or an opportunity to be
heard prior to the discharge; (5) the charges were made public; (6) he requested
a hearing to clear his name; and (7) the employer denied the request.” Id.
Individual Capacity:
      Bellard’s claims against the Sheriff in his individual capacity fail because
Bellard cannot show any evidence on summary judgment regarding the fifth
element, publication. Because this claim is against the Sheriff in his individual
capacity he must show that the Sheriff personally publicized the defamatory
statements. Bellard’s only evidence in this regard is his own statement about the
conversation he had with Chief LeDuff, where LeDuff purportedly said that he
had already heard about the termination from the Sheriff. Because we agree
with the district court that this is hearsay and not proper evidence for summary
judgment, Bellard’s claim against the Sheriff in his individual capacity fails.
      Bellard attempts to skirt his lack of evidence by offering other
conversations as publication. The only other ‘publication’ Bellard can point to
however, are instances in which he himself publicized the information in
question. Under this court’s case law, there is no publication for purposes of a
deprivation of a liberty interest if the plaintiff caused the stigmatizing facts to
be made public. Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir. 1984). While
other circuits have held that self-publication can meet the publication element,
this court has consistently held that public disclosure must be made by the
government defendant. Hughes v. City of Garland, 204 F.3d 223, 228 (5th Cir.
2000). Here, publication of the charges, if any, was made at the behest of Bellard
when he asked his father and Chief Knaps to act on his behalf to resolve the
matter. The natural consequences of such a request were that information was
conveyed to them involving the incident, either directly by Bellard himself, or




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when they attempted to act on Bellard’s behalf in contacting the Sheriff.1
Because there was no publication, we affirm the dismissal of suit against the
Sheriff in his individual capacity.2
Official Capacity:
        The district court also correctly dismissed the claims against the Sheriff
in his official capacity. Claims against the Sheriff in his official capacity are
treated as claims against the municipal entity he represents. Municipalities may
be held liable under § 1983 for constitutional violations if: (1) there is a
constitutional violation; (2) an official policy or custom; and (3) a showing that
the official policy or custom was the operational force behind the constitutional
violation. See Monell v. Dep’t of Soc. Ser., 436 U.S. 658 (1978). Besides Bellard’s
failure to show any kind of policy or custom which gave rise to the alleged
disclosure in question, his argument also suffers from the same lack of evidence
regarding publication as his individual capacity claims. Namely, he has no
competent evidence showing any disclosure by the Sheriff’s office prior to his
own conversation with LeDuff. As such, the district court ruling on the official
capacity federal liberty interest claims against the Sheriff are affirmed.
Personnel File:
        Finally, Bellard claims that information placed in his personnel file can
satisfy the publication requirements for either the individual capacity or official
capacity claims. He cites to several cases which supposedly support the
proposition that a) personnel files are discoverable under Louisiana’s Public
Records Law, and b) that they can satisfy the publication requirement. See City
of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, 4 So.3d 807,

        1
          Although only relevant to Bellard’s official capacity claim against the Sheriff, it is clear from
the record that the Sheriff’s department ensured that Bellard’s agents were inquiring on his behalf
before giving them information about the incident.

        2
          Bellard fails to properly brief his argument that the Sheriff is liable for punitive damages in
his individual capacity and those claims are waived.

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                                  Nos. 10-31266 & 11-30306

821 (La. App 1st Cir., 2008). He also cites to other circuits which have held that
a personnel record can satisfy the publication requirements. See Cox v.
Roskelley, 359 F.3d 1105, 1112 (9th Cir. 2004).
       There are a number of problems with Bellard’s argument. First, Bellard
never raised this argument at the district court and it is therefore waived.
Second, there is no indication that any letter of termination was ever placed in
his personnel file, and if so, whether it was placed there by the Sheriff. Proof of
personal placement would be needed to hold the Sheriff individually liable,
although placement in his personnel record by anyone from the Sheriff’s office
could satisfy Bellard’s official capacity claims. Bellard does not show that either
occurred. Third, there is no indication that any letter has been published or that
the personnel file has been turned over to anyone.
       Fourth, and most importantly, it is unclear whether any letter would
actually be discoverable under Louisiana’s Public Record Law. Louisiana’s Public
Record Law is liberally construed, but even the case Bellard points to is not
directly on point and does not go as far as Bellard claims. In City of Baton Rouge,
the Louisiana court allowed for the disclosure of the result of an Internal Affairs
Investigation into police officer brutality and excessive force.3 For the police
officers in question, this necessarily implicated some of the same interests that
Bellard seeks to protect here, but the public interest in the Internal Affairs
Investigation is of much greater interest than this case, and the records were of
a different nature. There is no indication that personnel files such as the one
Bellard claims would support the publication requirement would actually be
turned over under Louisiana law. We note this undecided issue of state law but
refrain from ruling on it here since there are other deficiencies that defeat


       3
         See also East Bank Consol. Special Serv. Fire Protection Dist. v. Crossen, 892 So. 2d 666 (La.
App 5th Cir. 2004) (finding that personnel files of the fire chief including his disciplinary record and
reprimands were exempt).

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                                  Nos. 10-31266 & 11-30306

Bellard’s claim of publication via his personnel file. Because there is no evidence
of publication, we affirm the district court’s grant of summary judgment.
C. State Liberty Interest Claims
       In addition to his federal interest claims, Bellard also cites claims against
the Sheriff in his official and individual capacities for violation of his liberty
interest under Article 1, Section 2 of the Louisiana State Constitution.4 The legal
analysis of Bellard’s claim under the Louisiana State Constitution is exactly the
same as his federal claims, Progressive Sec. Ins. Co. v. Foster, 711 So. 2d 675, 688
(La. 1998), with the only difference being the availability of vicarious liability in
the official capacity claims. Jenkins v. Jefferson Parish Sheriff’s Office, 402 So.
2d 669 (La. 1981).
State Law–Individual Capacity
       Much like Bellard’s federal claims against the Sheriff in his individual
capacity, his state law claims fail because he has no competent evidence which
satisfies the publication requirement. Since we agree with the district court that
Bellard’s statements about his conversation with LeDuff, including the reported
statements by the Sheriff, are hearsay, we affirm the district court’s ruling.
State Law–Official Capacity
       Under Louisiana law, an official can be found liable in his official capacity
for the actions of his employees. Jenkins, 402 So. 2d at 669. The district court
initially refused to dismiss this claim. After the deposition of LeDuff, the court
found that there was no issue of material fact and granted the Sheriff’s motion
for summary judgment. We affirm this rulling.
       LeDuff’s original affidavit, which the district court cited in its original
refusal to dismiss, indicated that he had talked with an unnamed official in the
Sheriff’s department about Bellard. After the motion to alter the original ruling,

       4
         “§2. Due Process of Law: Section 2. No person shall be deprived of life, liberty, or property,
except by due process of law.”

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                           Nos. 10-31266 & 11-30306

and the order to take a deposition of LeDuff, it was revealed that this discussion
with an official in the Sheriff’s department occured after LeDuff’s conversation
with Bellard. During LeDuff’s conversation with Bellard, he told Bellard he
would have to contact the Sheriff’s office to find out more information. Therefore,
the conversation was undertaken by LeDuff on Bellard’s behalf. The district
court’s analysis was correct since even if LeDuff misled Bellard for the purpose
of fishing for more information, Bellard called with the intention of telling him
about the incident in order to gain support from LeDuff for pleading his case to
the Sheriff or helping him find new employment. Because of this, Bellard cannot
claim that when acting on his behalf and with information he had already
imparted to LeDuff, that the Sheriff’s office published the information in
question to LeDuff in violation of the state constitution. The judgment of the
district court on this issue is affirmed.
D. State Defamation Claims
      Bellard brought state law defamation claims against the Sheriff in his
individual and official capacities. Under Louisiana law a plaintiff must show
four elements to prove defamation: (1) a false and defamatory statement
concerning another; (2) an unprivileged communication to a third party; (3) fault
(negligence or greater) on the part of the publisher; and (4) resulting injury.
Costello v. Hardy, 864 So. 2d 129, 139 (La. 2004).
Individual Capacity
      The district court dismissed Bellard’s individual capacity defamation
claims in its original ruling. The court found that the statements in question
were defamatory per se, but that the plaintiff could not make out the other
elements of the claim. We agree.
       Bellard’s claim for defamation against the Sheriff in his individual
capacity still lacks any competent evidence showing that his termination was
published to a third party in an unprivileged manner and thus fails for similar

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                           Nos. 10-31266 & 11-30306

reasons as his due process claims. The communications between those working
on his behalf, Knaps and Dennis Bellard, and the Sheriff, fall within either the
privileged communications exception or fail the publication requirement because
they were self-induced. See Jenkins, 402 So.2d at 669. With regard to the
communication between the Sheriff and LeDuff, the only evidence Bellard
presents is inadmissable hearsay.
Official Capacity
      The district court originally allowed the official capacity defamation claims
against the Sheriff to continue but eventually granted the motion for summary
judgment after the deposition of LeDuff. In his official capacity, the Sheriff may
be vicariously liable for the actions of his subordinates under Louisiana law.
There are no Louisiana cases which deal with self-publication of defamatory
statements, but as the district court noted, “given the necessity of proving fault
at the level of negligence or greater under Louisiana Law, allowing proof of self-
publication for these purposes would not comport with the elements of such tort.”
Bellard v. Gautreaux, 2011 WL 1103320, at *4 (M.D. La. 2011).
      Bellard points to the case of Fourcade v. City of Gretna to support his
argument that his claims should survive the motion for summary judgment. 598
So.2d 415 (La. Ct. App. 1992). There are some similarities between Bellard’s
allegations and Fourcade. In Fourcade, a police cadet was terminated from the
police academy after allegations of steroid use were made to his superiors. The
truth of the allegations was never proven and the cadet was not given a chance
to clear his name. Unfortunately for Bellard’s argument, that is where the
similarities end. Unlike the instant case, the supervisors in Fourcade did tell
others, including the cadet’s friends, about the reasons for his dismissal. That
publication was much different from the allegations here, where any publication
to Knaps, Dennis Bellard, or LeDuff were made on Bellard’s behalf and after
they had already been apprised of the termination by Bellard himself. In

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Fourcade, the cadet in question had told others about his termination and the
court found that such self-publication did not negate his supervisor’s publication
of the defamatory statements. Bellard attempts to equate this with his situation
but fails to point out a key difference. The cadet’s disclosures in Fourcade were
to people other than those who found out through his supervisors. Here, the
disclosures by the Sheriff’s office were to the same people Bellard had already
informed. In Fourcade, the self-publication did not conflict with the defamation,
but in the current case, there would not have been any potentially defamatory
conversations without the initial self-publication by Bellard to the very same
people who later received the supposedly defamatory information.
       Finally, any information relayed to LeDuff by the Sheriff’s office personnel
is protected under Louisiana law which protects information provided by a
former employer to a prospective employer.5 Therefore, Bellard cannot show any
unprivileged publication to support his state law defamation claims and we
affirm the district court’s grant of summary judgment for the Sheriff.


                                        CONCLUSION
       Because Bellard has failed to present competent summary judgment
evidence, we AFFIRM the district court’s grant of summary judgment in favor
of Sheriff Gautreaux.




       5
          La. R.S. 23:291(A): “Any employer that, upon request by a prospective employer or a current
or former employee, provides accurate information about a current or former employee's job
performance or reasons for separation shall be immune from civil liability and other consequences of
such disclosure provided such employer is not acting in bad faith. An employer shall be considered to
be acting in bad faith only if it can be shown by a preponderance of the evidence that the information
disclosed was knowingly false and deliberately misleading.”

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                             Nos. 10-31266 & 11-30306

DENNIS, Circuit Judge, concurring in the judgment:
      I agree with the majority that the district court was correct to grant
summary judgment for East Baton Rouge Parish Sheriff Sid Gautreaux III.
However, I do not agree with all of the majority’s reasoning and therefore join
in the judgment only. As far as Shane Bellard’s federal and state constitutional
due process claims, the summary judgment evidence fails to include admissible
evidence to show that the Sheriff or anyone in his Department published the
sexual harassment allegations against Bellard that led to his termination from
the Sheriff’s Department. Bellard’s affidavit that Chief Jeff LeDuff told him that
the Sheriff had purportedly told LeDuff that Bellard was terminated for sexual
harassment was inadmissible hearsay. See Fed. R. Evid. 801, 805. Thus, it was
not competent summary judgment evidence. See Fed. R. Civ. P. 56(c)(4) (“An
affidavit . . . used to support or oppose a motion must [inter alia] . . . set out facts
that would be admissible in evidence . . . .”). Neither was the fact that Bellard
himself told LeDuff about those allegations evidence of publication, see Hughes
v. City of Garland, 204 F.3d 223, 228 (5th Cir. 2000) (“This Circuit has
consistently required that public disclosure be made by the [defendant
governmental entity].”); nor did Bellard introduce evidence that anyone in the
Sheriff’s Department “plac[ed] [such allegations] in a publically available file,”
Tebo v. Tebo, 550 F.3d 492, 504 (5th Cir. 2008); see also Hughes, 204 F.3d at 228.
With regard to Bellard’s state law defamation claims, the Sheriff was also
entitled to summary judgment because Bellard failed to show a genuine issue of
material fact as to why the Sheriff and his Department would not be immune
from liability (if they were in fact liable) under Louisiana Revised Statutes
§ 23:291(A). Therefore, I concur in the majority’s judgment affirming the district
court’s grant of summary judgment for the Sheriff on all of Bellard’s claims.




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