                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                     -------------------------

                             NO. 92-3415

                     -------------------------

                            KENDALL STOCKSTILL,

                                            Plaintiff-Appellant
                                            Cross-Appellee,

                                       versus

                            SHELL OIL COMPANY,

                                            Defendant-Appellee
                                            Cross-Appellant.

                     -------------------------

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

                     -------------------------
                        (September 27, 1993)


Before EMILIO M. GARZA and DeMOSS, Circuit Judges, and ZAGEL1,
District Judge.

Zagel, District Judge.

                                      I.

     Kendall   Stockstill    is   a        former   employee   of   Coastline

Construction, Inc., an independent contractor that supplies welding

services to Shell Oil Company.        In the fall of 1988 Shell informed

Coastline that Stockstill would no longer be allowed on Shell

facilities.    Shell's action against Stockstill stemmed from its

investigation of a sexual harassment and discrimination charge


       1
          District Judge of the Northern District of Illinois,
sitting by designation.
filed in the summer of 1988 by B. J. Holcombe, a former employee of

a Shell subsidiary.         As part of its investigation into Holcombe's

charge, Shell interviewed an employee named Galen "Skipper" Berne.

Berne told Shell's investigators that he had seen touching and

heard name calling between Holcombe and Stockstill.                       Berne also

said   he   had    heard    rumors    that     Stockstill    placed   a    dildo   in

Holcombe's lunch bag. This information led Shell to ban Stockstill

from its facilities.          Shell did not interview Stockstill or B. J.

Holcombe as part of its investigation.

       Stockstill filed a charge of age discrimination against Shell

with    the    Equal       Employment      Opportunity       Commission      (EEOC).

Subsequently, Stockstill filed suit in federal district court

alleging age discrimination, as well as violations of ERISA and

Title VII against Shell and Coastline. Ann Ford, a Shell employee,

was responsible for coordinating the company's response to charges

filed with the EEOC. Ford had several telephone conversations with

Althea Bertrand, an EEOC investigator, about Stockstill's age

discrimination charge.              Bertrand asked Ford why Shell barred

Stockstill from its facilities.                When first confronted with this

question, Ford explained that Shell was not accusing Stockstill of

sexual harassment but that he had engaged in inappropriate conduct

in violation of Shell policies.                 Ford based her explanation on

information       contained    in    the   investigative       file   compiled     in

connection with B. J. Holcombe's charge of sexual harassment and

discrimination. In a subsequent conversation the EEOC investigator

pressed     Ford   for     specifics.          Ford   then   told   Bertrand    that


                                           2
Stockstill's conduct was "inappropriate" and "of a sexual nature."

There were no further conversations between Shell employees and

officials of the EEOC.        Nor did Shell discuss the investigation

with anyone outside of Shell other than the EEOC.

     In 1991 Stockstill filed the defamation suit against Shell

that is the subject of this appeal.        The district court granted

Shell's motion to consolidate Stockstill's 1990 action with the

defamation suit.       After consolidating the lawsuits, the district

court granted summary judgment for Shell and Coastline on the age

discrimination, ERISA and Title VII claims.2      Before trial, Shell

also filed two summary judgment motions on Stockstill's defamation

claim.       In the first motion Shell sought a ruling that statements

made to the EEOC in response to a charge of discrimination are

entitled to a qualified privilege.          Shell contended that the

qualified privilege forced Stockstill to prove malice or lack of

good faith in order to prevail.          Judge Carr denied the motion

stating that a triable issue remained as to whether Shell acted in

good faith in making the alleged defamatory statements.3        In an


    2
         The district court entered a partial judgment under Rule
54(b) on the dismissed claims and this Court dismissed Stockstill's
appeal for lack of jurisdiction on February 28, 1992.    The United
States Supreme Court subsequently denied Stockstill's application
for a Writ of Certiorari.

         3
           Judge Carr apparently agreed with Shell that Ford's
statements to the EEOC investigator were qualifiedly privileged.
This must be so since Judge Carr later granted judgment as a matter
of law in favor of Shell because Stockstill failed to show that
Ford made the allegedly defamatory comments with malice or in bad
faith.   This would also explain why Shell did not appeal the
district court's denial of their initial summary judgment motion.

                                     3
amended summary judgment motion Shell argued that statements made

to the EEOC in response to a charge of discrimination are entitled

to an absolute privilege. Judge Carr denied Shell's amended motion

as well.

     The case proceeded to trial before a jury on April 13, 1992.

B. J. Holcombe testified that Stockstill had called her a "bitch"

but had never sexually harassed her.    Stockstill admitted that he

called Holcombe a "bitch" but would not agree that such conduct was

inappropriate.    On April 14, at the conclusion of Stockstill's

case, the district court granted Shell's motion for judgment as a

matter of law.   The court held that there was no evidence that the

statements made to the EEOC were made with malice or in bad faith.

     Stockstill appeals the district court's judgment in favor of

Shell and the court's exclusion of evidence regarding Stockstill's

claim of age discrimination.     Shell cross appeals the district

court's denial of its motion for summary judgment based on absolute

privilege.    We affirm.

                                 II.

     Stockstill makes multiple arguments for reversal, all of which

lack merit.    Initially, he contends the trial court erred when it

granted Shell's motion for judgment as a matter of law.   We review

the district court's judgment as a matter of law de novo.    In the

Matter of Worldwide Trucks, Inc., 948 F.2d 976, 979 (5th Cir.

1991).   In so doing, we examine the entire record in the light most

favorable to the party opposing the motion, drawing all reasonable

inferences in favor of that party.     Id.   Before a judgment as a


                                  4
matter of law (formerly a directed verdict) will be granted, "the

facts and inferences must point so strongly and overwhelmingly in

favor of the moving party that no reasonable jury could arrive at

a contrary conclusion."        Id.      But a "mere scintilla of evidence" is

not sufficient to present an issue for the jury.                        Id.

      Stockstill says that after he presented his case-in-chief

"there was sufficient conflict in substantial evidence to create a

jury question" as to whether Shell acted with malice.                         Appellant's

Brief at      8.     Stockstill       is     mistaken.      Of    the    two       areas    of

"conflict" he identifies one is immaterial and the other presents

no conflict at all.

      One "conflict" concerns the date of Stockstill's discharge.

Stockstill says that while the parties stipulated to a discharge

date of September 12, 1988, Shell executives testified that he was

discharged     on    October     3,    1988.         Stockstill     interprets         this

discrepancy as an attempt by Shell to bolster its claim that its

action     against      him      came        after    extensive          investigation.

Stockstill's focus on the date of discharge and the thoroughness of

Shell's investigation is          misplaced.           What   matters         is    whether

Ann   Ford,    who   did   not    participate          in   the    investigation           of

Holcombe's sexual harassment charge, acted with malice or reckless

disregard for the truth when she relied on the Shell investigative

file in responding to the             EEOC    investigator's       inquiries.              The




                                              5
answer      to   that    question    is   not    affected     by    the   three-week

discrepancy concerning Stockstill's date of discharge.

       The   other      alleged    evidentiary    "conflict"       that   Stockstill

complains of relates to Shell's defense at trial.                         Stockstill

asserts that before trial Shell maintained it discharged Stockstill

because he engaged in inappropriate conduct of a sexual nature.

During trial Shell stated that the inappropriate conduct took the

form   of    inappropriate        language.      Based   on   his    brief,   it   is

difficult        to   know   why     Stockstill     finds     Shell's      positions

irreconcilable or, for that matter, why any of this matters.                       It

suffices to say that Shell's contentions before trial are not

inconsistent with its defense at trial.              Inappropriate conduct of

a sexual nature does not necessarily imply that the conduct at

issue included physical contact. Conduct that is inappropriate and

of a sexual nature can just as easily take the form of verbal

abuse.      That is what Shell maintains occurred in this case and the

record supports Shell on this point.                In short, neither of the

evidentiary "conflicts" identified by Stockstill warrant reversal

of the district court's judgment as a matter of law in favor of

Shell.

       Next, Stockstill asserts, without elaboration, that he did not

have to show falsity or malice at trial because Shell's statements

were defamatory per se.              This argument rings hollow.              Ford's

cautiously worded explanation for why Shell took action against

Stockstill does not amount to an explicit accusation that he

sexually harassed or discriminated against anyone.                    Cf. Rouly v.


                                          6
Enserch Corp., 835 F.2d 1127, 1129 (5th Cir. 1988) (remarks not

defamatory    per   se    where     defendant    did   not   explicitly   accuse

plaintiff of criminal activity).                If the words "inappropriate

conduct of a sexual nature" are defamatory, their "intent and

meaning . . . must be gathered not only from the words singled out

as libelous, but from the context as well . . ."                      Madison v.

Bolton, 102 So.2d 433, 438 (La. 1958).             By definition, therefore,

the statements at issue are not defamatory per se because a

defamatory per se statement must be defamatory on its face, without

reference to its context.              Id.; see Rouly, 835 F.2d at 1129

(defamatory per se statements analyzed "without reference to their

context").     As noted below, Stockstill himself concedes that the

words spoken by Ann Ford to the EEOC investigator take on a

defamatory innuendo when considered in the context of the sexual

harassment investigation in which they were uttered.

       Perhaps sensing the futility of his defamatory per se

argument,    Stockstill       argues   alternatively     that   the    allegedly

defamatory statements carry a defamatory innuendo for which the

truth of the statements is not a defense unless the innuendo is

likewise     truthful.        Stockstill       reasons   that   the    allegedly

defamatory statements, arising as they did in the investigation of

B. J. Holcombe's sexual harassment charge, carry the innuendo that

Stockstill was involved in the sexual harassment of Holcombe.

According to Stockstill, even if Shell was unaware of the falsity

of this innuendo,        it   was    for   the jury to decide whether Shell




                                           7
exhibited a reckless disregard for the truth when it relied on one

employee's version of Stockstill's treatment of B. J. Holcombe.

     This argument suffers from two fatal flaws. First, it wrongly

focuses on Shell's investigation rather than whether or not Ford

exhibited malice by relying on Shell's investigative file when

responding to EEOC inquiries.          Second, Stockstill presented no

evidence that Shell acted recklessly in its investigation or that

Ann Ford recklessly relied on the investigative file.            Stockstill

offered no evidence, for example, that Ford, or anyone at Shell,

knew that the alleged defamatory statements were false when they

were spoken to the EEOC.4     In fact, the record supports Ford's good

faith belief in the accuracy of the information contained in the

investigative file.       Ford based her remarks to the EEOC on notes

taken during an interview of Skipper Berne, and Berne confirmed the

accuracy of the notes at trial.        Nor did Stockstill offer evidence

that anyone at Shell acted recklessly in believing the information

supplied by Skipper Berne.         Instead, Stockstill simply denied any

wrongdoing.

     Shell    correctly    notes    that   even   if   the   statements   are

defamatory per se, the plaintiff must still prove malice when the

circumstances of a communication are such that the person who made

the statement is entitled to a qualified privilege.               And Shell


       4
           Shell does not concede the falsity of the alleged
defamatory statements.    On the contrary, Shell contends the
statements are true. Shell maintains that Stockstill's admission
at trial that he had routinely called B. J. Holcombe a "bitch" is
sufficient to show that he did in fact engage in inappropriate
conduct of a sexual nature.

                                       8
maintains that Ford's statements to the EEOC are entitled to such

a privilege.   "Qualified privilege is an affirmative defense to

defamation provided by Louisiana law for one who can prove that he

made a statement (1) in good faith (2) on a matter in which he had

an interest or a duty (3) to another person with a 'corresponding

interest or duty.'"   Rouly, 835 F.2d at 1130 (citations omitted).

Good faith or lack of malice "means that 'the person making the

statement must have reasonable grounds for believing that it is

true and he must honestly believe that it is a correct statement.'"

Id. (citations omitted).   The plaintiff has the burden of proving

malice or lack of good faith.   Id.

     The statements at issue here are entitled to a qualified

privilege under Louisiana defamation law. The allegedly defamatory

statements made to the EEOC related to the charge of discrimination

that Stockstill filed against Shell.   Both Shell and the EEOC had

an interest or duty regarding the charge.   The EEOC is authorized

by law to investigate charges of discrimination against employers.

Shell had a corresponding duty to cooperate in the investigation

and an interest in defending itself against Stockstill's charge.

It was Ann Ford's job to coordinate Shell's response to charges,

such as Stockstill's, filed with the EEOC.      And, as previously

noted, Stockstill offered no evidence that Ford, or anyone else at

Shell, had reason to believe the information supplied by Skipper

Berne was not true.   On the contrary, the evidence shows that Ford

had reasonable grounds for believing that the information contained




                                 9
in the investigative file was accurate.                 Thus, Stockstill has

failed to meet his burden of proving malice or lack of good faith.5

     Lastly, Stockstill seeks reversal because the trial judge

excluded testimony concerning Stockstill's prior charge of age

discrimination against Shell.            Stockstill cites no authority to

support this argument; he merely contends that the trial judge's

rulings on this issue were inconsistent.           Shell's response to this

purported   basis    for   reversal      is   equally    brief,     though   more

persuasive.   Shell notes that Stockstill made no offer of proof

that would allow this Court to determine if a substantial right had

been affected by the trial court's ruling, as required by

Rule 103(a)(2)      of   the   Federal    Rules   of    Evidence.     Generally

speaking, "this circuit will not even consider the propriety of the

decision to exclude the evidence at issue, if no offer of proof was

made at trial."     United States v. Winkle, 587 F.2d 705, 710 (5th

Cir.), cert. denied, 444 U.S. 827 (1979).              While a formal proffer

is not essential, the proponent of the evidence "must show in some

fashion the substance of the proposed testimony."             Id.    There is no

indication in the record as to precisely what evidence Stockstill

     5
        We are expressly refusing to decide Shell's cross appeal,
in which Shell challenges the district court's denial of its motion
for summary judgment based on an absolute privilege under federal
law. The district court implicitly found, and we have expressly
held, that Ford's statements to the EEOC are qualifiedly privileged
under Louisiana law.     Since the qualified privilege provides
sufficient protection for Shell, this Court need not inquire
whether Shell is entitled to greater protection. We express no
opinion about whether federal common law accords an absolute
privilege to statements made by employers to the EEOC in the course
of an EEOC investigation. Nor do we decide whether federal law
provides a qualified privilege different from or greater than the
privilege supplied by Louisiana law.

                                      10
wanted to present at trial.   Therefore, we do not have an adequate

basis for reviewing the district court's ruling.

     The judgment of the district court is AFFIRMED.




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