Tsiatsios v . Anheuser-Busch CV-07-003-JL 1/16/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
George Tsiatsios
v. Civil N o . 07-CV-003-JL Opinion N o . 2009 DNH 009 Anheuser-Busch, Inc.
O R D E R
The plaintiff, George Tsiatsios, sued Anheuser-Busch, Inc.
in New Hampshire Superior Court alleging intentional interference
with contractual relations. Tsiatsios claimed that one of
Anheuser-Busch’s managers intentionally and improperly interfered
with his employment at Gauthier Farm Enterprises, Inc. (Gauthier
Farm). Anheuser-Busch removed the case to this court, see 28
U.S.C. § 1441, and moved for summary judgment. See Fed. R. Civ.
P. 5 6 . The court has jurisdiction under 28 U.S.C. § 1332
(diversity). After oral argument, and for the reasons set forth
below, the court grants Anheuser-Busch’s motion.
I. APPLICABLE LEGAL STANDARD
Summary judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c); see Dávila v . Corporación De P.R. Para la Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007). "The object of
summary judgment is to pierce the boilerplate of the pleadings
and assay the parties' proof in order to determine whether trial
is actually required." Id. (internal quotation omitted). A
trialworthy issue of fact, however, “does not spring into being
simply because a litigant claims that one exists.” Griggs-Ryan
v . Smith, 904 F.2d 112, 115 (1st Cir. 1990). “[T]he nonmoving
party must produce hard evidence of a material factual dispute to
survive a summary judgment motion.” U.S. v . 6 Fox Street, 480
F.3d 3 8 , 42 (1st Cir. 2007) (internal citation omitted).
In making this determination, the “court must scrutinize the
record in the light most flattering to the party opposing the
motion, indulging all reasonable inferences in that party’s
favor.” Mulvihill v . Top-Flite Golf Co., 335 F.3d 1 5 , 19 (1st
Cir. 2003). The following facts are set forth in accordance with
that standard.
II. BACKGROUND
Anheuser-Busch, the defendant, brews beer at its Merrimack,
New Hampshire plant. Beer fermentation, the process which gives
beer its alcohol content and carbonation, creates a grain by-
product commonly known in the industry as “spent grain.” To
dispose of that grain, Anheuser-Busch contracted with Blue Sky Ag
2 Marketing (Blue Sky) 1 to purchase and oversee spent grain removal
from the Merrimack brewery. Over the years, Blue Sky has
subcontracted with various trucking companies to haul the spent
grain from the brewery to its customers at local farms.
Starting in 2000, George Tsiatsios worked for Elgin Cartage,
Ltd., as a tractor-trailer truck driver, then for Milford
Transportation, Inc., and then Gauthier Farm Enterprises, Inc. as
each company assumed the hauling contract with Blue Sky. With
each trucking company, Tsiatsios’ job responsibilities included
driving onto Anheuser-Busch’s property, monitoring the grain
levels in the brewery’s storage tanks, loading the spent grain
onto his truck, and hauling the grain to Blue Sky’s customers.
As Tsiatsios was repeatedly made aware, Anheuser-Busch
promulgated safety and security rules requiring truck drivers
such as himself to wear identification badges, hard hats, safety
glasses, and earplugs while on brewery property. By his own
concession, Tsiatsios understood that a failure to comply with
these rules would result in his being banned from the brewery.
For example, Tsiatsios acknowledges that in early 2004, soon
after another grain driver suffered an eye injury at the brewery,
1 Blue Sky is a grain by-products broker. It sold the spent grain to farmers throughout New England as cattle feed.
3 Tsiatsios received a memo from his employer at the time, Milford
Transportation, advising:
Any driver that is observed not wearing safety equipment and their ID badge at the brewery will be banned from entering the brewery.
If you are banned from the brewery, you will not have a job. We cannot load for you.
This is a very serious matter and could result in loss of the contract by Milford Transportation or Blue Sky Ag North. No exceptions will be considered.
In the four months preceding Tsiatsios’ termination alone, Blue
Sky and Milford Transportation reminded him of Anheuser-Busch’s
safety and security rules, and stressed the importance of
adhering to them, on at least five separate occasions.
Tsiatsios began driving for Gauthier Farm on July 1 , 2004,
but was terminated four days later following an altercation with
Roland Vance, Anheuser-Busch’s resident health and safety
manager. That morning, Tsiatsios drove his truck to the
Anheuser-Busch brewery to pick up spent grain, just as he had on
numerous prior occasions for Gauthier Farm and its predecessor
haulers, and waited in a nearby control room for his truck to
fill with grain. Soon thereafter, Vance entered this room and
found Tsiatsios, who he did not know, without an identification
4 badge2 and wearing aviator sunglasses that did not comply with
the brewery’s policy on protective eyewear.3 Vance introduced
himself and explained that he worked for Anheuser-Busch. While
the two men had not previously met, Tsiatsios was aware that a
man named “Roland Vance” worked for Anheuser-Busch and had
“something to do with safety.”
Vance then asked Tsiatsios who he was, why he was on
Anheuser-Busch property, and how he had gotten into the grain
loading area. Tsiatsios repeatedly refused to identify himself
to Vance, and would only reveal that he was at the brewery to
load grain. Following a brief discussion regarding the
appropriateness of the sunglasses he was wearing, Tsiatsios
walked out of the room while Vance was still asking him
2 Prior to his encounter with Vance, Tsiatsios claims to have spoken with a security guard at the brewery about obtaining an identification badge, but had been told that security personnel were out of “blanks.” 3 Tsiatsios acknowledges having read the specific portion of one memo advising him “that prescription eye glasses or sunglasses are not a substitute for safety glasses.” Milford Transportation had previously issued Tsiatsios the required safety glasses, but he was not wearing them at the brewery that day.
5 questions, ignoring or disregarding Vance’s requests that he stop.4
Don Paulson, Blue Sky’s director of operations, was at the
brewery overseeing the transition from Milford Transportation to
Gauthier Farm when he observed Tsiatsios exit the control room
followed by Vance. While none of these men were familiar with
one another prior to this incident, Paulson did believe that
Tsiatsios was one of Gauthier Farm’s grain drivers. Paulson
approached Tsiatsios and briefly spoke with him about what had
just happened before advising him to put on a proper pair of
safety glasses. As Blue Sky’s representative at the brewery,
Paulson then introduced himself to Vance and asked for his
version of the events. Vance relayed that when he came upon
Tsiatsios in the control room he lacked proper safety equipment
and, when confronted, refused to identify himself or adequately
explain his presence before walking away. Vance then impressed
upon Paulson the importance that Anheuser-Busch placed on
drivers’ adherence to its safety policies and indicated that
4 While claiming to have left the control room to check on the amount of grain in his trailer, Tsiatsios has been unable to provide any explanation for why he continually refused to identify himself. When directly and repeatedly questioned on this point at his deposition, Tsiatsios repeatedly testified only that “I was there to load grain,” and that he did not identify himself “[b]ecause I didn’t.”
6 Tsiatsios’ behavior--failing to identify himself to an Anheuser-
Busch employee and rudely responding when asked to do so--was
unacceptable. Paulson informed Vance that he would contact
Tsiatsios’ employer about the incident and rectify the situation.
Paulson relayed Vance’s account and his own observations to
Chris Gauthier, the vice president in charge of trucking at
Gauthier Farm. Paulson informed Gauthier that he did not want
Tsiatsios, whom Gauthier had confirmed was the employee in
question, back on Anheuser-Busch property. Later, after
confirming Paulson’s version of the events with Vance, Gauthier
terminated Tsiatsios’ at-will employment with Gauthier Farm.5
There is no evidence before the court that Vance ever excluded
Tsiatsios from the brewery himself or instructed anyone at Blue
Sky or Gauthier Farm to do s o .
III. ANALYSIS
Under New Hampshire law, a plaintiff alleging intentional
interference with contractual relations must show that “(1) the
plaintiff had an economic relationship with a third party; (2)
the defendant knew of this relationship; (3) the defendant
5 At oral argument, Tsiatsios conceded that there was nothing improper about Gauthier Farm’s termination of his employment.
7 intentionally and improperly interfered with this relationship;
and (4) the plaintiff was damaged by such interference.” Singer
Asset Fin. Co., LLC v . Wyner, 156 N.H. 468, 478 (2007).
Anheuser-Busch argues that Tsiatsios has not only failed to
present any evidence that it intentionally or improperly
interfered with his employment at Gauthier Farm, but that, as a
matter of law, it “cannot be held liable in tort where it was
acting to protect its legitimate interests, requiring that
[Tsiatsios, a business invitee] comply with its known safety and
security rules.” Tsiatsios responds that summary judgment should
be denied because the record “could support a jury finding that
Vance acted intentionally and improperly toward plaintiff.”
Specifically, he argues that Vance’s characterization of
Tsiatsios’ behavior as unacceptable contained an implicit
directive to Blue Sky to ban Tsiatsios from the brewery.
A. Intentional interference
To establish that the defendant’s interference was
intentional and improper, a “plaintiff ha[s] to ‘show that the
interference with his contractual relations was either desired by
the defendant or known by [it] to be a substantially certain
result of [its] conduct.’” Demetracopoulos v . Wilson, 138 N.H.
371, 374 (1994) (quoting Restatement (Second) of Torts § 767 cmt.
8 d). Here, the only interference alleged by Tsiatsios consists of
Vance’s statements to Paulson regarding what transpired in the
control room. The record shows only that Vance, when questioned
by Paulson, relayed his version of the events, stressed the
importance of following the brewery’s safety procedures in the
future, and indicated that Tsiatsios’ actions and behavior were
unacceptable. Assuming, arguendo, that affirmatively banning
Tsiatsios from the plant would have constituted intentional
interference, the record is bereft of any evidence that anyone
from Anheuser-Busch actually excluded Tsiatsios from its brewery.
Nor is there any evidence that an Anheuser-Busch representative
asked anyone at Blue Sky or Gauthier Farm to do the same.
Indeed, it is Paulson, Blue Sky’s man on site, who swears in his
affidavit--the lone piece of evidence before the court that
addresses this aspect of Tsiatsios’ claim--that “I told Mr.
Gauthier . . . that I did not want Tsiatsios back on Anheuser-
Busch property.” Paulson unilaterally made the decision to
exclude Tsiatsios from the brewery, and there is nothing in the
record to suggest the contrary.6 See Singer, 156 N.H. at 478
6 Tsiatsios’ argument is further attenuated by the fact that Vance’s statements were not made to anyone at Gauthier Farm, but to a representative from Blue Sky.
9 (noting that element of claim is that interference must be
intentional).
Tsiatsios argues that Vance’s statements to Paulson were a
“thinly veiled code for ‘get rid of that man,’” and, therefore,
improper. He asks the court to infer that since the brewery’s
rules were (according to Tsiatsios) only loosely enforced on
drivers, and, because he “followed the well-known and long-
standing practice of drivers to not wear the ID tags and safety
equipment,” Vance’s statements must have been intended to effect
his termination. The underlying premise of this argument,
however--that since Anheuser-Busch made little effort to enforce
its rules, a termination based upon a purported violation of
these rules must have been improper--has no support in the
record. Rather, the summary judgment record establishes that
Anheuser-Busch made a consistent and concerted effort to ensure
the grain drivers’ compliance with its policies. Tsiatsios
acknowledges that he and other drivers received numerous notices
in the months preceding his termination reminding them that it
was necessary to follow the brewery’s safety policies, clarifying
any confusion as to what safety equipment was deemed appropriate,
and warning that any failure to comply would result in
termination. (Defs.’ Mot. for Summ. J. Ex. D-I; Pl.’s Dep. 157,
161, 166-67, 170, 171-72, 173-74, 179.)
10 Further, even if the court accepted that Anheuser-Busch had
ordered Tsiatsios’ exclusion from the brewery, there is no
evidence before the court that Anheuser-Busch desired, or was
substantially certain, that doing so would result in his
termination from Gauthier Farm. Tsiatsios argues that Anheuser-
Busch must have been aware of this as “[i]t was common knowledge
that trucking companies like Milford and Gauthier existed to
service the [ ] brewery and that the drivers for Milford and then
Gauthier, like plaintiff, worked exclusively hauling grain.” But
his only evidence in support of that assertion is the affidavit
of his brother, fellow spent grain hauler Charles Tsiatsios,
stating: “It is common knowledge among the drivers, among the
security staff at the brewery that we deal with every day, and
among the companies that contract with the brewery that if a
driver is banned from the brewery that person has just lost his
job.” (Charles Tsiatsios Aff. ¶ 10.) Even crediting this
affidavit, as generally required on a motion for summary
judgment, see Mulvihill, 335 F.3d at 1 9 ; but see Schubert v .
Nissan Motor Corp. in U.S.A., 148 F.3d 2 5 , 30 (1st Cir. 1998)
(noting that only affidavits based on personal knowledge should
be considered by a court ruling on summary judgment); Fed. R.
Civ. P. 56(e)(1); Fed. R. Evid. 602, Tsiatsios’ brothers speaks
11 only of grain drivers, security personnel,7 and trucking
companies working at the brewery. He fails to ascribe this
“common knowledge” to the only party whose knowledge is relevant
to the inquiry; Anheuser-Busch. Thus, the Charles Tsiatsios’
affidavit is not probative of whether the defendant’s conduct was
intentional.
As Tsiatsios has failed to present evidence that Anheuser-
Busch’s alleged interference with his employment was intentional
as that term is understood under the applicable law, Anheuser-
Busch is entitled to judgment as a matter of law.
B . Improper interference
As an alternative basis for granting summary judgment, the
court notes that even intentional interference, “in itself, is
legally insufficient to state a claim. Rather, only improper
interference is deemed tortious in New Hampshire.” Kilty v .
Worth Dev. Corp., N o . 05-2101 2006 WL 1606174, at *2 (1st Cir.
June 1 3 , 2006) (internal citation omitted) (emphasis in
original). Under New Hampshire law, interfering with the
contractual relations of another is not improper--and, thus, not
7 It was established at oral argument that security personnel at the Merrimack plant are employed by an outside contractor, and are not Anheuser-Busch’s employees.
12 tortious--where the defendant merely relayed truthful information
to a third party, or interfered as a means to protect its own
legitimate interests.
Citing the Restatement (Second) of Torts § 772, New
Hampshire courts have long recognized the permissibility of
interference with a contract by conveying “truthful information”
or “honest advice” to a third person. See, e.g., Feeney v .
Kressy, N o . 05-CV-461-JD, 2006 WL 1081128, at *4 (D.N.H. Apr. 2 0 ,
2006) (“New Hampshire . . . recognizes a privilege for a person
to interfere with a contract by giving honest advice to a third
person”; Riblet Tramway Co., v . Ericksen Assoc., Inc., 665 F.
Supp. 8 1 , 87 (D.N.H. 1987) (applying New Hampshire l a w ) ; Montrone
v . Maxfield, 122 N.H. 724, 726 (1982) (“any truthful information
or honest advice given by the defendant cannot constitute
wrongful interference”). As the Restatement explains, there is
nothing improper about intentionally causing a third party to
break off a contractual relationship by giving truthful
information:
There is of course no liability for interference with a contract . . . on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason
13 for breaking his contract or refusing to deal with another.
Restatement (Second) of Torts § 772 cmt. b (1979). Here, the
uncontroverted evidence is that Paulson asked Vance what had
happened in the control room. In response, Vance merely provided
what he believed--and what Tsiatsios concedes--was truthful
information. Apart from the characterization of his behavior as
unacceptable, Tsiatsios does not dispute the conclusion that the
substance of Vance’s statements was truthful; his argument,
instead, is that Vance improperly intended for his comments to
result in Tsiatsios’ termination from Gauthier Farm. As
explained supra Part III(A), however, this argument has no
evidentiary support.
But even assuming, arguendo, that Anheuser-Busch intended to
cause Tsiatsios’ termination, New Hampshire law provides that
certain conduct, which would otherwise amount to tortious
interference with contractual relations, is justified where an
employer has acted to protect its own legitimate interests. See,
e.g., Emery v . Merrimack Valley Wood Prods., Inc., 701 F.2d 985,
989 (1st Cir. 1983) (enforcing former employee’s covenant not to
compete); Donovan v . Digital Equip. Corp., 883 F. Supp. 775, 788
(D.N.H. 1994) (same); Nat’l Employment Serv. Corp. v . Olsten
Staffing Serv., 145 N.H. 158, 160 (2000) (enforcing restrictive
14 covenant); Roberts v . General Motors Corp., 138 N.H. 532, 541
(1994) (recognizing franchisor’s legitimate interest in selecting
its franchisees); Technical Aid Corp. v . Allen, 134 N.H. 1 , 10
(1991). The Restatement, which is cited as authority in a number
of the above cases, explains that:
One who, by asserting in good faith a legally protected interest of his own . . . intentionally causes a third person not to perform an existing contract . . . does not interfere improperly with the other’s relation if the actor believes that his interest may otherwise by impaired or destroyed by the performance of the contract or transaction.
Restatement (Second) of Torts § 773. Here, Vance’s statements to
Paulson manifested nothing more than Anheuser-Busch’s interest in
enforcing its safety and security policies. This interest
involves numerous legitimate concerns including public safety,
workplace safety, its own economic interests, and, as often is
the case, insulation from civil liability.
Tsiatsios has failed to establish a genuine issue of
material fact warranting trial. The undisputed facts of this
case establish that Anheuser-Busch neither intentionally nor
improperly interfered with the employment relationship between
Tsiatsios and Gauthier Farm, both of which he must prove to
support his claim. See Singer, 156 N.H. at 478. Anheuser-Busch,
15 therefore, is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c).
IV. CONCLUSION
For the foregoing reasons, the court grants Anheuser-Busch’s
motion for summary judgment (document n o . 29) on Tsiatsios’ claim
for intentional interference with contractual relations. The
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Judge
Dated: January 1 6 , 2009
cc: Michael J. Sheehan, Esq. Arthur G. Telegen, Esq. Lawrence S . Smith, Esq.