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USCA1 Opinion
August 4, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________
No. 93-2121
THERESA LYONS AND DENNIS LYONS,
Plaintiffs, Appellants,
v.
NATIONAL CAR RENTAL SYSTEMS, INC.
(OF DELAWARE),
Defendant, Appellee.
____________
ERRATA SHEET
The opinion of this court issued on July 27, 1994, is
amended as follows:
Amend the cover sheet as follows: "Kathleen E. Cross, with
_________________
whom Brenda M. Cotter, Gerald P. Tishler, and Brown, Rudnick,
_________________ __________________ ________________
Freed & Gesmer, P.C. were on brief for appellee."
____________________
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2121
THERESA LYONS AND DENNIS LYONS,
Plaintiffs, Appellants,
v.
NATIONAL CAR RENTAL SYSTEMS, INC.
(OF DELAWARE),
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
[Hon. Donald E. Walter, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
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Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
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____________________
Matthew Cobb, with whom the Law Firm of Matthew Cobb was on brief
____________ _________________________
for appellants.
Kathleen E. Cross, with whom Brenda M. Cotter, Gerald P. Tishler,
_________________ _________________ _________________
and Brown, Rudnick, Freed & Gesmer, P.C. were on brief for appellee.
____________________________________
____________________
July 27, 1994
____________________
____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but did
not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).
BOWNES, Senior Circuit Judge. Plaintiff-appellant,
BOWNES, Senior Circuit Judge.
____________________
Theresa Lyons (Lyons), appeals from the entry of judgment as
a matter of law in favor of defendant-appellee, National Car
Rental Systems, Inc. (National), on her claims of slander and
violating the Massachusetts Civil Rights Act. Lyons had
filed a nine count complaint in the district court against
National after her termination. Six counts were dismissed
pretrial on a motion for summary judgment.1 No appeal was
taken from the summary judgment dismissal. The remaining
three counts, which included a count by plaintiff's husband
for loss of consortium, were tried before a jury. The trial
was bifurcated. After plaintiff rested on her liability
counts, defendant moved for judgment as a matter of law under
Fed. R. Civ. P. 50. After briefing and argument by the
parties, the court entered judgment for defendant as a matter
of law.
Plaintiff filed a timely appeal which included the
loss of consortium count. The issues on appeal are whether
either or both of the liability counts should have been
submitted to the jury. Our standard of review has been
stated as follows:
A reviewing court applies the same
standard that governed adjudication of
____________________
1. The counts dismissed on motion for summary judgment were
breach of contract, libel, invasion of privacy, intentional
infliction of emotional distress, negligent infliction of
emotional distress, and false imprisonment.
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the Rule 50 motion below: we
"scrutiniz[e] the proof and the
inferences reasonably to be drawn
therefrom in the light most hospitable to
the nonmovant," refraining entirely from
"differential factfinding." In the
process, we may "not consider the
credibility of witnesses, resolve
conflicts in testimony, or evaluate the
weight of the evidence."
Cook v. Rhode Island Dep't of Mental Health, 10 F.3d 17, 21
____ ____________________________________
(1st Cir. 1993) (citations omitted).
THE FACTS
THE FACTS
_________
In accord with the standard of review, we state the
facts in the light most favorable to the plaintiff. Lyons
worked for National at Logan International Airport in Boston,
Massachusetts. She began working for National in 1983 as a
rental representative, became a customer service manager in
1985, and was promoted to regional training manager in 1989.
Lyons' immediate supervisor was Ellen Justiniano.
This action arose from events that occurred during
a training conference held by National at its headquarters in
Minneapolis, Minnesota, during the week of April 8, 1991.
Lyons attended the conference along with her regional
counterparts. During the conference, Lyons encountered some
problems with her supervisor, Justiniano. The first day she
arrived Lyons was in the elevator with Justiniano. Lyons
looked at her keys and remarked, "I am a little bit
confused." Whereupon Justiniano responded, "Well, what else
is new?" She was told during one session by Justiniano that
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she was embarrassing her by nodding off and to go into the
bathroom and put on some make-up. During one of the training
sessions Justiniano slipped her a note which read, "Terry, I
just put you through training. Why are you embarrassing me?
Why aren't you answering any questions?"
On Friday, April 12, the last day of the
conference, Justiniano pulled her aside and told her that the
company was investigating a car theft from its office in
Boston and Bryan Viau, National's chief of security, would
like to speak to Lyons to get some input. Lyons agreed to
meet with Viau at his office at ten o'clock.
After greeting Lyons in his office, Viau escorted
her into a very small room. It had a round table with a box
of tissues on it, which caught her eye, and chairs at the
table two or three feet apart. One of the chairs was already
occupied by a woman, Trudie Levesque. She was there because
of National's policy when questioning employees of the
opposite sex. Viau started the interview by asking Lyons how
her week had been going. She responded by starting to cry.
She told Viau that she had a bad week, that she had a bad
relationship with her boss, and that her boss had not been
very nice to her.
Lyons then asked Viau to please tell her what was
going on. Viau pointed to a folder and said, "I have strong
evidence that you were involved in a company theft." Lyons
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became hysterical and asked several times if she could see
the evidence. Viau refused to show her the evidence. Lyons
then said, "Why would I be crying so hard if I was guilty of
doing something like that?" Viau responded by saying that it
was people like her who cry a lot that are the guilty ones.
He also said that it was people like her who know the ins and
outs of the company that do things such as that. Viau also
told her that she had the face of a good liar. Viau continued
to say, "Terry, you know, you know the ins and outs. It's
people like you. If you don't speak now, you will be
prosecuted. You will lose your job." At some point Viau
left the room. When he came back, Lyons asked him what was
going to happen at this point. He said, "You go back to your
job, and when we have the evidence we will prosecute you.
Just go back and do your job." Viau also told her that if a
trial "was to come forward," he would let her know. This
ended the interview. During the interview, Lyons named her
stepson as the possible thief because he had a prior record
of stealing cars. She did this in an attempt to help Viau
identify the real thief.
On cross-examination Lyons said that she never
asked to leave the interrogation room. She testified that
Viau never touched her or threatened to touch her, and that
although Viau raised his voice during the interview, he never
shouted. Based on facts that were represented to have been
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known by National, Lyons agreed that National had some basis
for questioning her. She further testified on cross that she
had the opportunity to say anything she wanted about the
theft.
When Lyons got into the van to go to the airport
for her trip home, she was still visibly very much upset.
When asked by some of her colleagues what was wrong, she told
them that she had been accused of car theft. After arriving
home, Lyons told members of her family about the interview
and accusation of car theft. She went back to work in
National's Boston office.
Viau's questioning of Lyons was prompted by a prior
investigation which disclosed evidence suggesting that the
theft was an inside job involving someone with the name of
Lyons. The stolen car was ultimately found in the possession
of a Barbara Lyons. The only link between Barbara Lyons and
the plaintiff was that, unknown to plaintiff, Barbara Lyons
was having a relationship with plaintiff's brother-in-law,
Patrick Dello Iacono, who was a sergeant on the Everett
Police department. Viau decided to interview plaintiff after
consultation with her supervisors, Foley, Ceruolo, and
Justiniano.
THE SLANDER COUNT
THE SLANDER COUNT
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Because this is a diversity case, Massachusetts law
applies. We agree with the district court that the
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statement, "National has strong evidence you are involved in
a car theft," was slanderous. Galvin v. New York, New Haven
______ ___________________
and Hartford R.R. Co., 168 N.E.2d 262, 294 (Mass. 1960)
_______________________
(accusations of crime actionable without proof of special
damage); Bander v. Metropolitan Life Ins. Co., 47 N.E.2d 595,
______ __________________________
598 (Mass. 1943) (same).
The district court held that the other statements
made during the interview were not slanderous: "You have the
face of a good liar"; "It's people like [you] who cry that
are the guilty ones"; "It's people like [you] who know the
ins and outs of the company that do things such as that";
"Terry, you know, you know the ins and outs. It's people like
you"; and "If you don't speak now, you will be prosecuted."
We do not think that these statements should have
been excised from the accusation of car theft. All the
statements made by Viau were part and parcel of that
accusation. This is not a situation where statements are
made at different times and in different contexts. The
statements were made during one interview. National accused
plaintiff of car theft, and because she denied it, said she
was a liar. Part of the theft accusation was that as an
employee of National, she had the knowledge of company
practice and the opportunity to commit the theft. She also
was told that if she did not confess to the theft she would
be prosecuted. The statements, taken as a whole, constituted
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a single accusation that Lyons had stolen a company car and
an attempt by National to have her confess to the accusation.
Defendant argues that because plaintiff did not
specifically object to the district court rulings finding the
statements not slanderous during the Rule 50 hearings, she is
precluded from raising the issue here. There is no merit to
this contention. The plaintiff argued that the statements
were slanderous during the Rule 50 hearing. Tr., 2d day, pp.
95-97. And she also argues to the same effect in her
appellate brief. Plaintiff's Brief at 13. This was
sufficient to preserve the issue for review. There is no
requirement that specific objections to the court's rulings
be made during a Rule 50 hearing. It suffices that the
plaintiff raise the issues so that the court understands what
they are. This was clearly done here. The requirement that
specific objections be made to the introduction of evidence
or to the court's final charge to the jury do not, contrary
to defendant's suggestion, apply to a Rule 50 hearing.
Although defendant has not argued lack of
publication on appeal, the district court did express doubts
about publication during the Rule 50 hearing. We simply note
that the publication requirement for a slander action under
Massachusetts law was met here. Brauer v. Globe Newspaper
______ _______________
Co., 217 N.E.2d 736, 739 (Mass. 1966):
___
There is no requirement in an action of
libel "that the defamatory matter be
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communicated to a large or even
substantial group of persons. It is
enough that it is communicated to a
single individual other than the one
defamed." Restatement: Torts, 577.
See Bigelow v. Sprague, 140 Mass. 425,
___ _______ _______
426-427, 5 N.E. 144; Rumney v. Worthley,
______ ________
186 Mass. 144, 71 N.E. 316; Bander v.
______
Metropolitan Life Ins. Co., 313 Mass.
_____________________________
337, 349, 47 N.E.2d 595; Prosser, Torts
(3d ed.) 108.
In Bander v. Metropolitan Life Ins. Co., 47 N.E.2d
______ ___________________________
at 601, the court held that there was no "immunity from
liability for defamation" communicated by one agent of a
corporation to another agent. The presence of the third
person in the interrogation room was sufficient to meet the
publication requirement.
We now turn to the related issues of conditional
privilege and malice. We agree with the district court that
the facts giving rise to a conditional privilege by National
were proven during plaintiff's case-in-chief. National's
prior investigation had disclosed that a person by the name
of Lyons was probably involved in the car theft. Prior to
the interrogation of plaintiff, Viau had grounds for
suspecting that the theft was an inside job. And plaintiff
herself stated that National had some basis to question her
about the car theft.
Massachusetts courts have recognized that
a person may possess a conditional
privilege to publish defamatory material
if the publication is reasonably
necessary to the protection or
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furtherance of a legitimate business
interest.
Bratt v. Int'l Business Machines Corp., 467 N.E.2d 126, 131
_____ ______________________________
(Mass. 1984); see also McCone v. New England Tel. and Tel.
___ ____ ______ __________________________
Co., 471 N.E.2d 47, 51 (Mass. 1984).
___
The basic issue is whether National lost its
conditional privilege by abusing it. We rule that under the
law and the facts this was a jury question. In Foley v.
_____
Polaroid Corp., 508 N.E.2d 72 (Mass. 1987), the Supreme
_______________
Judicial Court reiterated the test for abuse of the
privilege:
[w]hen as here, executives of a corporate
employer make statements that defame an
employee, and the information disclosed
by those statements is reasonably related
to the employer's legitimate business
interests, the employee has the burden to
prove that the statements were made
recklessly, that is, that they were
unnecessary, unreasonable, or excessively
published. Of course, a statement made
with knowledge of its falsity or with
reckless disregard for the truth would be
reckless within the meaning of the rule.
Id. at 79-80 (citations omitted).
___
A finding of recklessness is necessary to overcome
a conditional privilege. In Bratt, 467 N.E.2d at 131, the
_____
court pointed out that proof of "actual malice" was not a
prerequisite to the loss of the privilege. Id. (citing
___
Galvin, 168 N.E.2d at 266). The court then went on to
______
explain that Massachusetts law favored "recklessness" or
"malice in fact" as the standard. Id. It defined one type
___
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of "malice in fact" as "'the willful doing of an injurious
act without lawful excuse.'" Id., n.9 (quoting Doane v.
___ _____
Grew, 107 N.E. 620, 621 (Mass. 1915)). The court concluded,
____
that loss of a defendant's conditional
privilege in a defamation action through
"unnecessary, unreasonable or excessive
publication" requires proof that the
defendant acted recklessly.
Id. at 132.
___
We think that a factfinder could reasonably
conclude that the statements made during the interrogation of
plaintiff were reckless. Plaintiff was told at the outset by
Viau: "I have strong evidence that you were involved in a
company theft." Viau pointed to a folder during the
accusation; this implied that it contained such evidence.
But the evidence was not disclosed to plaintiff, despite her
request to see it. In fact, there was no "strong evidence"
that plaintiff had been involved in a company theft. All
that National had at that time was, at best, a reasonable
suspicion. Plaintiff was then called a liar and told that
because of her position in the company she had the knowledge
to commit the theft. She was then threatened with
prosecution and loss of her job if she did not confess to the
theft. These statements considered as a whole could be found
to be "reckless" under Massachusetts law.
We also think that "malice in fact" could
legitimately be found. First, there was evidence from which
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a jury could find that plaintiff's immediate supervisor,
Justiniano, either disliked plaintiff personally or was
displeased with her conduct at the meeting. But of telling
significance was the conduct of the interrogation. In fact,
it was not an interrogation but an inquisition. Accusations
and threats were made; there was no attempt to determine the
facts objectively. The manner in which the interrogation was
conducted fairly reeked of malice. It could reasonably be
found that the accusations and threats made to plaintiff were
"the willful doing of an injurious act without lawful
excuse." Bratt, 467 N.E.2d at 131, n.9.
_____
The judgment of the district court on the slander
count is reversed. The determination was for the jury.
Because the loss of consortium count rises or falls with the
slander count, it also remains viable.
THE MCRA COUNT
THE MCRA COUNT
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Plaintiff's next argument on appeal arises from the
district court's granting of National's motion for judgment
as a matter of law on her Massachusetts Civil Rights Act
[MCRA] claim. Plaintiff claimed that National, through its
employee Viau, violated the MCRA by using threats and
intimidation in an attempt to cause her to relinquish her
Fifth Amendment right against self-incrimination. See Mass.
___
Gen. Laws ch. 12 11I. No claim was asserted against Viau
individually.
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The MCRA states, in pertinent part:
Any person whose exercise or enjoyment of
rights secured by the constitution or
laws of the United States . . . has been
interfered with, or attempted to be
interfered with [by any person or
persons, whether or not acting under
color of law, by threats, intimidation or
coercion,] may institute and prosecute in
his own name and on his own behalf a
civil action for . . . money damages. . .
.
Id. 11H, 11I. The district court granted National's
___
motion, finding first that the MCRA did not recognize claims
based on the doctrine of respondeat superior, and second that
plaintiff presented not a "scintilla" of evidence that Viau's
actions were taken pursuant to any policy or custom
established by National. Plaintiff challenges on appeal only
the first finding. Assuming, without deciding, that
plaintiff would have had an actionable MCRA claim if she had
named Viau as a defendant, we turn to the respondeat superior
issue.
The question of whether an employer may be held
vicariously liable under the MCRA for the actions of its
employee has not been addressed by any Massachusetts state
court. See, e.g., Rodriques v. Furtado, 575 N.E.2d 1124,
___ ____ _________ _______
1131 n.14 (Mass. 1991) (expressly declining to decide issue
with respect to municipal employer); cf., e.g., O'Connell v.
___ ____ _________
Chasdi, 511 N.E.2d 349, 354 (Mass. 1987) (remanding for trial
______
MCRA claim asserted against private employer for acts of
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employer's agent, without questioning applicability of
respondeat superior). Similarly, we have never had occasion
to answer this question. See, e.g., Dean v. City of
___ ____ ____ ________
Worcester, 924 F.2d 364, 370 n.7 (1st Cir. 1991) (declining
_________
to comment on issue with respect to municipal employer). The
only courts that have addressed the issue have determined
that claims under the MCRA cannot be based on the doctrine of
respondeat superior. E.g., Broderick v. Roache, 803 F. Supp.
____ _________ ______
480, 484 (D. Mass. 1992) (municipal employer); Jones v. City
_____ ____
of Boston, 738 F. Supp. 604, 606 (D. Mass. 1990) (private
_________
employer).
"Absent controlling state court precedent, a
federal court sitting in diversity may certify a state law
issue to the state's highest court, or undertake its
prediction, `when the [route] [the] state courts would take
is reasonably clear.'" Vanhaaren v. State Farm Mut. Auto.
_________ ______________________
Ins. Co., 989 F.2d 1, 3 (1st Cir. 1993) (citation omitted).
________
Because we find sufficient guidance on this issue, we follow
the latter course.
The Massachusetts Supreme Judicial Court [SJC] has
clearly described the scope of the MCRA:
The Legislature enacted [the MCRA] to
provide a State remedy for deprivations
of civil rights. The statute extended
beyond the limits of its Federal
counterpart by incorporating private
action within its bounds. We conclude
___________
that the Legislature intended to provide
_________________________________________
a remedy under [the MCRA], coextensive
_________________________________________
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with 42 U.S.C. 1983, except that the
______________________
Federal statute requires State action
whereas its State counterpart does not.
Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1131
__________ _____________________
(Mass. 1985) (emphasis added). "[B]y reaching private party
actions, the Legislature did not intend to create `a vast
constitutional tort,'" and thus limited the MCRA remedy to
cases involving threats, intimidation, or coercion. Bally v.
_____
Northeastern Univ., 532 N.E.2d 49, 52 (Mass. 1989) (citation
__________________
omitted).
Rulings in 1983 cases predating the MCRA may be
used to determine whether doctrines applicable under 42
U.S.C. 1983 also apply under the MCRA. See Duarte v.
___ ______
Healy, 537 N.E.2d 1230, 1232 (Mass. 1989) ("We presume that
_____
the Legislature was aware of this case law [on qualified
immunity] when it chose to pattern the Massachusetts Civil
Rights Act after 1983."). Accordingly, we look to cases
construing the federal Civil Rights Act for guidance in the
present action.
In Monell v. New York Dep't of Soc. Servs., 436
______ _______________________________
U.S. 658 (1978), the Supreme Court considered whether local
governments may be liable under 1983 for the
unconstitutional conduct of their employees. The Court held
that claims against municipalities cannot rest on a theory of
respondeat superior, but may proceed if there is proof that
the employee acted in accordance with the employer's policy
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or custom. Id. at 694. In a concurrence, Justice Powell
___
stated that Congress's intent, as expressed in the
legislative history of 1983, can best be understood as
limiting "the statutory ambit to actual wrongdoers, i.e., a
____
rejection of respondeat superior or any other principle of
__________ ________
vicarious liability." Id. at 707 (Powell, J. concurring).
___
Plaintiff argues that Monell's rejection of
______
respondeat superior cannot be grafted on the MCRA because
Monell concerns only municipalities, while the MCRA may be
______
invoked against private parties. We disagree. Although the
holding in Monell is framed so that it expressly applies only
______
to local governments, the decision is based generally on the
language and legislative history of 1983, not on
principles--such as sovereign or qualified immunity--
applicable only to governmental entities. See Monell, 436
___ ______
U.S. at 690-94.
It is true that one aspect of Monell's discussion
______
of the legislative history of 1983 has no relevance to
private corporations: certain members of Congress opposed
making municipalities vicariously liable on the ground that
Congress lacked the power to impose "positive" duties on
local governments. Id. at 679-83, 693. We do not believe,
___
however, that this aspect of the Court's reasoning undermines
our conclusion. The remainder of Monell focusses on matters
______
pertinent to all employers, public or private. The Court
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stated, for example, that Congress declined to make
municipalities vicariously liable under 1983, despite
arguments that vicarious liability would reduce the incidence
of unconstitutional acts and would spread the cost of
injuries throughout the community. Id. at 693-94. These
___
justifications are equally applicable to private
corporations.
The Massachusetts legislature enacted the MCRA in
1979, one year after Monell was decided. Presumably, the
______
legislature was aware of Monell. Duarte, 537 N.E.2d at 1232.
______ ______
The language of the MCRA contains no indication that the
legislature intended to expand the scope of employer
liability under the MCRA beyond that available under 1983.
Compare Mass. Gen. Laws ch. 12, 11H ("Whenever any person
_______
or persons, whether or not acting under color of law,
interfere by threats, intimidation or coercion . . .") with
____
42 U.S.C. 1983 ("Every person who, under color [of law],
subjects, or causes to be subjected, any [other person] to
the deprivation of any rights . . ."). Moreover, it is clear
that the state legislature knew how to pass statutes
embracing the doctrine of respondeat superior. E.g., Mass.
____
Gen. Laws ch. 151B 3(1) ("It shall be an unlawful practice:
For an employer, by himself or his agent" to discriminate on
the basis of race, religion, ethnicity, sex, or age); id. ch.
___
258, 2 ("Public employers shall be liable for injury or
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loss of property . . . caused by the negligent or wrongful
act or omission of any public employee while acting within
the scope of his office or employment . . . .") (enacted
1978). Finally, the parties have not cited anything in the
legislative history of the MCRA indicating that the
legislature intended to make employers vicariously liable for
the acts of their employees. Accordingly, we hold that
claims against employers under the MCRA cannot rest on the
doctrine of respondeat superior.
SUMMARY
SUMMARY
_______
We reverse the district court's judgment on the
slander claim and on the loss of consortium claim based on
the slander issue and remand for a new trial on those claims.
As to the MCRA claim, the district court's judgment is
affirmed.
Affirmed in part, reversed in part. No costs.
Affirmed in part, reversed in part. No costs.
______________________________________________
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Document Info
Docket Number： 93-2121
Filed Date： 8/4/1994
Precedential Status： Precedential
Modified Date： 9/21/2015