IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30614 Summary Calendar
BILL ROBERTSON,
Plaintiff-Appellant-Cross-Appellee,
versus
SEARS, ROEBUCK & COMPANY,
Defendant-Appellee-Cross-Appellant.
Appeal from the United States District Court for the Western District of Louisiana (98-CV-1033)
February 9, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff Bill Robertson was store manager for the Sears store
in Lake Charles, Louisiana. Although he had a generally good
record of almost thirty-four years of service with defendant Sears,
Roebuck & Co. (“Sears”), he was discharged from his employment on
May 2, 1997 at the age of fifty-five. Sears cited a record of
complaints about mistreatment of subordinates and violation of
company accident and inventory policies over the preceding year.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. After his discharge, Sears continued to use Robertson’s name and
signature in promotional mailings that identified him as the
manager of the Lake Charles store. Sears took no action to correct
this error until mid-November, 1997.
On May 1, 1998, Robertson filed suit against Sears in
Louisiana state court. Sears later removed. After a bench trial,
the district court rejected Robertson’s claims under the federal
Age Discrimination in Employment Act1 (“ADEA”) and Louisiana ADEA.2
It awarded Robertson $2,000 in damages for his claim that the
unauthorized use of his name and signature violated his right to
privacy. It rejected Robertson’s claims under the Louisiana Unfair
Trade Practices and Consumer Protection Law3 and the Louisiana
doctrine of abuse of right, also alleging misuse of his name and
signature. Robertson appealed, and Sears cross-appealed.
We affirm.
I
Robertson challenges the district court’s ruling on the ADEA
claim on three grounds: the court erred in finding there was no
basis to infer age discrimination from the Sears 1993 Early
Retirement Incentive Program; the court erred in finding that the
proffered reasons for terminating Robertson were not pretext for a
1 29 U.S.C. § 621 et seq. (2000). 2 La. Rev. Stat. § 23:311 et seq. (2000). 3 La. Rev. Stat. § 51:1401 et seq. (2000).
2 prohibited motive; and the court erred in rejecting Robertson’s
claim that similarly situated employees were given preferential
treatment.
Robertson argues that the 1993 ERIP should have been
sufficient to create a prima facie case of age discrimination
because the plan was not truly voluntary. This argument is
irrelevant to this appeal, however, because the district found, and
Sears does not contest, that Robertson established a prima facie
case of age discrimination. Instead, the issue in this appeal is
whether the district court clearly erred in finding that Sears’s
proffered non-discriminatory reasons for firing Robertson were not
pretextual.
Although Robertson points this court to evidence from which an
inference of pretext could be drawn, he fails to address the
evidence that Sears presented to substantiate its claim that it had
legitimate reasons for firing him. This case involved both
conflicting testimony and conflicting inferences from testimony.
Crediting one witness over another, and drawing reasonable
inferences from the testimony, is the province of the finder of
fact.4 Robertson has identified no clear error in the district
court’s findings.5
4 See Fed. R. Civ. P. 52(a) (2000); Anderson v. Bessemer City, 470 U.S. 564, 573-75 (1985). 5 We note that Robertson’s attempts to point at similarly situated employees also fails. The only individuals that Robertson
3 II
Sears argues that the district court’s finding that Sears
invaded Robertson’s privacy should be reversed. It argues that
because its unauthorized use of his name was unintentional, there
was no actionable invasion of privacy. In the alternative, it
argues that because Robertson did not complain to Sears before
filing this lawsuit, Robertson has shown no interest in privacy in
the use of his name; thus, its use of his name was not
unreasonable. Robertson argues that the district court’s ruling
awarding him damages for Sears’s use of his name in a promotional
mailing should be affirmed. He argues that the district court was
correct in finding an invasion of privacy, but he also argues that
Sears’s actions violated the Louisiana Unfair Trade Practices and
Consumer Protection Law and constituted an abuse of right. We
address these arguments in turn.
A
Robertson alleges that Sears invaded his privacy by
appropriating his name for the use and benefit of Sears. Sears
argues that since the district court found Sears merely negligent
in the use of Robertson’s name, there was no intentional
appropriation, and thus no tort. But conscious decision to
identified as similarly situated were loss prevention managers at other stores. The district court correctly held that employees in different positions with different supervisors are not similarly situated. Their responsibilities and conduct must be “nearly identical.” See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir. 2000).
4 appropriate a name is not necessary. Louisiana courts have held
that “[a]n actionable invasion of privacy occurs only when the
defendant’s conduct is unreasonable and seriously interferes with
the plaintiff’s privacy interest. For an invasion to be
actionable, it is not necessary that there be malicious intent on
the part of the defendant.”6 Actions taken in good faith that
unreasonably invade a person’s privacy create liability for
invasion of privacy under Louisiana law. Louisiana courts allow
plaintiffs to recover for invasion of privacy even when the
defendant believed its actions were justified7 or was unaware that
privacy rights were being infringed.8
Sears also argues that its actions were not unreasonable. The
district court found that Sears continued to use Robertson’s name
for more than five months after he was fired; that Sears had no
legitimate interest in using his name after firing him; and that
Robertson suffered humiliation from use of his name. These
findings justify the conclusion that Sears acted unreasonably.
That Robertson did not complain to Sears at the time of the
mailings does not make Sears’s continued use of his name
6 Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1389 (La. 1979). 7 See Lucas v.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30614 Summary Calendar
BILL ROBERTSON,
Plaintiff-Appellant-Cross-Appellee,
versus
SEARS, ROEBUCK & COMPANY,
Defendant-Appellee-Cross-Appellant.
Appeal from the United States District Court for the Western District of Louisiana (98-CV-1033)
February 9, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff Bill Robertson was store manager for the Sears store
in Lake Charles, Louisiana. Although he had a generally good
record of almost thirty-four years of service with defendant Sears,
Roebuck & Co. (“Sears”), he was discharged from his employment on
May 2, 1997 at the age of fifty-five. Sears cited a record of
complaints about mistreatment of subordinates and violation of
company accident and inventory policies over the preceding year.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. After his discharge, Sears continued to use Robertson’s name and
signature in promotional mailings that identified him as the
manager of the Lake Charles store. Sears took no action to correct
this error until mid-November, 1997.
On May 1, 1998, Robertson filed suit against Sears in
Louisiana state court. Sears later removed. After a bench trial,
the district court rejected Robertson’s claims under the federal
Age Discrimination in Employment Act1 (“ADEA”) and Louisiana ADEA.2
It awarded Robertson $2,000 in damages for his claim that the
unauthorized use of his name and signature violated his right to
privacy. It rejected Robertson’s claims under the Louisiana Unfair
Trade Practices and Consumer Protection Law3 and the Louisiana
doctrine of abuse of right, also alleging misuse of his name and
signature. Robertson appealed, and Sears cross-appealed.
We affirm.
I
Robertson challenges the district court’s ruling on the ADEA
claim on three grounds: the court erred in finding there was no
basis to infer age discrimination from the Sears 1993 Early
Retirement Incentive Program; the court erred in finding that the
proffered reasons for terminating Robertson were not pretext for a
1 29 U.S.C. § 621 et seq. (2000). 2 La. Rev. Stat. § 23:311 et seq. (2000). 3 La. Rev. Stat. § 51:1401 et seq. (2000).
2 prohibited motive; and the court erred in rejecting Robertson’s
claim that similarly situated employees were given preferential
treatment.
Robertson argues that the 1993 ERIP should have been
sufficient to create a prima facie case of age discrimination
because the plan was not truly voluntary. This argument is
irrelevant to this appeal, however, because the district found, and
Sears does not contest, that Robertson established a prima facie
case of age discrimination. Instead, the issue in this appeal is
whether the district court clearly erred in finding that Sears’s
proffered non-discriminatory reasons for firing Robertson were not
pretextual.
Although Robertson points this court to evidence from which an
inference of pretext could be drawn, he fails to address the
evidence that Sears presented to substantiate its claim that it had
legitimate reasons for firing him. This case involved both
conflicting testimony and conflicting inferences from testimony.
Crediting one witness over another, and drawing reasonable
inferences from the testimony, is the province of the finder of
fact.4 Robertson has identified no clear error in the district
court’s findings.5
4 See Fed. R. Civ. P. 52(a) (2000); Anderson v. Bessemer City, 470 U.S. 564, 573-75 (1985). 5 We note that Robertson’s attempts to point at similarly situated employees also fails. The only individuals that Robertson
3 II
Sears argues that the district court’s finding that Sears
invaded Robertson’s privacy should be reversed. It argues that
because its unauthorized use of his name was unintentional, there
was no actionable invasion of privacy. In the alternative, it
argues that because Robertson did not complain to Sears before
filing this lawsuit, Robertson has shown no interest in privacy in
the use of his name; thus, its use of his name was not
unreasonable. Robertson argues that the district court’s ruling
awarding him damages for Sears’s use of his name in a promotional
mailing should be affirmed. He argues that the district court was
correct in finding an invasion of privacy, but he also argues that
Sears’s actions violated the Louisiana Unfair Trade Practices and
Consumer Protection Law and constituted an abuse of right. We
address these arguments in turn.
A
Robertson alleges that Sears invaded his privacy by
appropriating his name for the use and benefit of Sears. Sears
argues that since the district court found Sears merely negligent
in the use of Robertson’s name, there was no intentional
appropriation, and thus no tort. But conscious decision to
identified as similarly situated were loss prevention managers at other stores. The district court correctly held that employees in different positions with different supervisors are not similarly situated. Their responsibilities and conduct must be “nearly identical.” See Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 304-05 (5th Cir. 2000).
4 appropriate a name is not necessary. Louisiana courts have held
that “[a]n actionable invasion of privacy occurs only when the
defendant’s conduct is unreasonable and seriously interferes with
the plaintiff’s privacy interest. For an invasion to be
actionable, it is not necessary that there be malicious intent on
the part of the defendant.”6 Actions taken in good faith that
unreasonably invade a person’s privacy create liability for
invasion of privacy under Louisiana law. Louisiana courts allow
plaintiffs to recover for invasion of privacy even when the
defendant believed its actions were justified7 or was unaware that
privacy rights were being infringed.8
Sears also argues that its actions were not unreasonable. The
district court found that Sears continued to use Robertson’s name
for more than five months after he was fired; that Sears had no
legitimate interest in using his name after firing him; and that
Robertson suffered humiliation from use of his name. These
findings justify the conclusion that Sears acted unreasonably.
That Robertson did not complain to Sears at the time of the
mailings does not make Sears’s continued use of his name
6 Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386, 1389 (La. 1979). 7 See Lucas v. Ludwig, 313 So. 2d 12 (La. App. 4th Cir. 1975). 8 See Lambert v. Dow Chemical Co., 215 So. 2d 673 (La. App. 1st Cir. 1968). The Lambert court noted that the trial court had found that the defendant acted in “good faith.” Id. at 674.
5 reasonable. Describing a case similar to the instant case, a
Louisiana Court of Appeals has noted that the invasion of privacy
was serious in a case “where 150,000 photography advertising
postcards were mailed across the state with the unauthorized
photograph of the plaintiff on them.”9 In that case, there was no
mention of the plaintiff complaining before suing the defendant,
and even though the defendant argued that the unauthorized use of
the photograph was a mistake, it conceded liability and the court
affirmed the award of damages.10
B
The Louisiana Unfair Trade Practices and Consumer Protection
Law creates a private cause of action for “[a]ny person who suffers
any ascertainable loss of money or movable property.”11 Even if we
assume that invasion of an employee’s privacy is actionable under
this law, Robertson lost no money or movable property as a result
of Sears’s use of his name. Thus, Robertson cannot recover under
this law.
C
Robertson argues that an act constitutes an abuse of right
when “the predominant motive for it was to cause harm . . . [or the
9 See Slocum v. Sears Roebuck & Co., 542 So. 2d 777, 779 (La. App. 3d Cir. 1989), citing Olan Mills, Inc. of Texas v. Dodd, 353 S.W.2d 22 (1962). 10 Olan Mills, 353 S.W.2d at 23. 11 La. Rev. Stat. § 51:1409 (2000).
6 act] is against moral rules, good faith, or elementary fairness.”12
The district court found that Sears did not intend to harm
Robertson, but that Sears’s use of his name was negligent.
Robertson does not challenge these findings. Given these findings,
Sears’s actions fail to meet the criteria cited by Robertson.13
III
For the foregoing reasons the judgment of the district court
is AFFIRMED in all respects.
12 Hemmans v. State Farm Ins. Co., 653 So. 2d 69, 77 (La. App. 4th Cir. 1995). Hemmans noted that the doctrine of abuse of right had not been applied by Louisiana courts since 1976. See id. 13 Nor do we find any basis for finding the other Hemmans criteria applicable to this case.