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 FOR THE FIRST CIRCUIT
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,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
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
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
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
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
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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