[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                November 28, 2005
                               No. 05-14033                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 04-00536-CV-CG-M


LULA P. WATTERS,
MIA G. FALLS,

                                                             Plaintiffs-Appellants,

                                     versus

LOUISIANA PACIFIC CORPORATION,

                                                             Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________
                             (November 28, 2005)


Before DUBINA, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Lula P. Watters and Mia G. Falls (the “Appellants”) appeal the district
court’s grant of summary judgment to Louisiana Pacific Corporation (“LP”) on

their state-law defamation claims. Those claims arose when the appellants, former

employees of LP, were terminated for allegedly falsifying their time cards. The

appellants claim that company agents made defamatory statements to that effect.

       Ultimately, the district court reasoned that the appellants could not establish

the necessary elements of a defamation claim under Alabama law, as the

statements at issue were never published to a third party except under

circumstances that were privileged. In the alternative, the district court held that

the statements were true. Because the record is devoid of evidence that the

statements were published to a third party, we affirm.

                                      BACKGROUND

       Prior to their termination, appellants were hourly employees of LP. After an

investigation in which she discussed the appellants with other LP employees,

Caroyln Sarblah (“Sarblah”), a human resources official, determined that they had

falsified their time cards.1 Appellants were then terminated, and filed for

unemployment compensation benefits with the Alabama Department of Industrial

Relations. During administrative hearings held to determine the appellants’

entitlement to such benefits, Sarblah and other LP representatives explained the


       1
       Appellees maintain that any discrepancies in their time cards resulted from the
malfunctioning of the time-keeping equipment and tampering with their time cards.

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course of the investigation and the circumstances surrounding the appellants’

termination.

      Aside from the testimony at this hearing and the statements made to other

LP agents in the course of the investigation, the appellants both concede that they

know of no statements made to non-employees concerning the circumstances of

their termination. The record is otherwise devoid of evidence of such

communications.

                             STANDARD OF REVIEW

      We review a district court’s summary judgment ruling de novo, applying the

same legal standards as the district court. Cuviller v. Rockdale County, 

, 1337 (11th Cir. 2004). All the evidence and reasonable inferences therefrom

must be viewed in the light most favorable to the appellants, who oppose summary

judgment. 

is then properly granted where the non-moving

party is unable to establish the existence of each essential element of their case on

which they bear the burden of proof at trial. See Celotex Corp. v. Catrett, 

, 325 (1986).

                                    DISCUSSION

      Under Alabama law, to establish a prima facie case of defamation, the

plaintiff must show: (i) that the defendant was at least negligent; (ii) in publishing;



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(iii) a false and defamatory statement to another; (iv) concerning the plaintiff; (v)

which is either actionable without having to prove special harm or actionable upon

allegations and proof of special harm. Gary v. Crouch, 

, 315 (Ala.

2003). While the publication element is generally satisfied where the defamatory

matter was communicated to someone other than the plaintiff, 

employees in the course of transacting the company’s business and in the

scope of the employee’s duties do not constitute a publication. Schrimsher v.

Liberty Nat'l Life Ins. Co., 

, 988 (Ala. 1995), citing Cantrell v.

North River Homes, Inc., 

, 553 (Ala. 1993). Thus, communications

made to employees in the course of investigating the plaintiff’s employment

behavior do not constitute third-party publication for defamation purposes. Burks

v. Pickwick Hotel, 

, 190 (Ala. 1992). Similarly, Alabama statute

provides that communications made in connection with the administration of the

Department of Industrial relations are absolutely privileged and cannot form the

basis for an action for slander or libel in any court. Ala. Code. § 25-4-116 (2005);

see also, Dixon v. Economy Co., 

, 354 (Ala. 1985).

      Under these standards, the district court was clearly correct in granting

summary judgment based on the lack of any evidence of publication to a third

party. While appellants point to communications that Sarblah made to other LP



                                           4
employees in the course of her investigation, the Alabama Supreme Court has held

that such statements do not constitute publication. See Pickwick 

. Likewise, appellants cannot rely on statements made at their

unemployment compensation hearings, as those are privileged by virtue of § 25-4-

116. Accordingly, LP was entitled to summary judgment because appellees failed

to make a sufficient showing that the allegedly defamatory information was

published to a third party, a necessary element of their case on which they bore the

burden of proof. See 

.2

       AFFIRMED.




       2
       Because we affirm the district court based on the lack of record evidence of publication,
we need not reach the district court’s alternative holding that the allegedly defamatory
statements were true.

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