Beruflich Dokumente
Kultur Dokumente
August 4, 1994
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
amended as follows:
Amend
this
court issued
on
July 27,
1994,
is
Matthew Cobb, with whom the Law Firm of Matthew Cobb was on br
____________
_________________________
for appellants.
Kathleen E. Cross, with whom Brenda M. Cotter, Gerald P. Tishl
_________________
_________________ _______________
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
not participate in the drafting or the issuance of the pane
opinion.
The remaining two panelists therefore issue this opin
pursuant to 28 U.S.C.
46(d).
Plaintiff-appellant,
a matter of law in
the Massachusetts
nine count complaint
National after
pretrial
taken
Civil
from the
three counts,
in the district
her termination.
on a motion for
court against
summary judgment.1
No appeal was
dismissal.
After
had
were dismissed
summary judgment
bifurcated.
Lyons
Six counts
Rights Act.
The remaining
by plaintiff's husband
before a jury.
plaintiff rested
The trial
on her
liability
R. Civ.
P. 50.
After
briefing and
argument by
the
or
submitted
both of
to
the
the jury.
standard
the
are whether
should
have been
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.
-22
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
____
favorable to the
plaintiff.
Lyons
She began
rental representative,
became a customer
as a
service manager in
Minneapolis,
Lyons
Minnesota, during
attended
counterparts.
the
the week
conference
along
of April
with
looked
Lyons was
at
her
confused."
is new?"
regional
her
8, 1991.
in the
keys
and
The
"I
am
some
Lyons
little
bit
Whereupon Justiniano
-33
she was
embarrassing her by
go into the
just
Friday,
April
12,
the
last
day
of
the
conference, Justiniano pulled her aside and told her that the
company was
Boston and
like to
investigating
Bryan Viau,
a car
theft from
National's chief of
speak to Lyons to
its office
in
security, would
Lyons agreed to
on it, which
of
caught her
opposite sex.
her
policy
when
relationship
at the
questioning
employees
of
the
a box
National's
escorted
She
she had a
bad
Lyons
-44
if she could
see
Lyons
guilty ones.
He also said that it was people like her who know the ins and
outs
such as that.
Viau also
told her that she had the face of a good liar. Viau continued
to say,
people like
you.
prosecuted.
left the
If you
room. When he
don't
your job."
Just
trial
we have
the evidence we
come forward,"
During
cars.
At some
will
be
point Viau
him what was
will prosecute
you.
let her
know. This
She did
It's
you
speak now,
outs.
this in an attempt
her
prior record
to help Viau
cross-examination
Lyons
said that
she
She testified
never
that
and that
Based on
-55
have been
had
to say
the opportunity
anything she
wanted about
the
theft.
When
for her trip
van to go
to the airport
very much
upset.
When asked by some of her colleagues what was wrong, she told
them that she had
home, Lyons
and
told members of
accusation of
car
After arriving
theft.
She
the interview
went back
to
work in
which disclosed
Lyons.
evidence suggesting
the name of
of a Barbara
Lyons.
the plaintiff
was
relationship with
having a
Patrick
that the
Dello
Iacono, who
was
plaintiff's brother-in-law,
a sergeant
on
the Everett
Police department.
consultation
her
Justiniano.
with
supervisors,
Foley,
Ceruolo,
and
We
agree
with
the
district
court
that
the
-66
168 N.E.2d
crime actionable
262,
without
294 (Mass.
proof of
1960)
special
other statements
of a good
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
been
excised
statements
from the
made
accusation.
made
by
at different
accusation of
Viau
This is
were
not a
times
employee
of
Part of
National,
be prosecuted.
theft.
and
parcel
different
one interview.
had the
contexts.
that
The
said she
was that
knowledge
of
of
National accused
All the
statements are
part
car
situation where
and in
was a
as an
company
She also
-77
car and
argues that
because
plaintiff did
not
The
There is no merit to
And
she also
brief.
argues
to
Plaintiff's
sufficient to preserve
made during
a Rule
the same
Brief
the issue
effect
at
13.
for review.
the statements
in
her
This
was
There is
no
to the court's
rulings
It suffices
that the
50 hearing.
specific objections
or to the court's
be made to the
The
requirement that
introduction of evidence
not, contrary
defendant
has
not
argued
Massachusetts law
of
lack
We simply note
Brauer v.
______
Globe Newspaper
_______________
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
liability
held that
for defamation"
corporation
to
person in the
there
was no
communicated
another agent.
The
"immunity from
by one
agent of
presence of
the third
meet the
publication requirement.
We now
privilege
turn to
and malice.
of conditional
proven
during plaintiff's
by National
case-in-chief.
National's
a person by the
car theft.
the
interrogation
of
involved in the
plaintiff,
Viau
had
Prior
grounds
name
to
for
And plaintiff
to question her
-99
furtherance
interest.
Bratt
_____
of
legitimate
business
(Mass.
basic
issue
is
whether
the facts
this was
a jury question.
508 N.E.2d
72
(Mass.
Judicial
reiterated
the
test
privilege:
lost
its
Polaroid Corp.,
_______________
Court
National
In
1987), the
for
abuse
Foley v.
_____
Supreme
of
the
conditional privilege.
that
In
that proof
to the
N.E.2d
loss
of "actual malice"
of the
at 266).
Massachusetts
"malice in fact"
privilege.
The court
law
as the standard.
-1010
favored
Id.
___
then
to overcome
at 131, the
was not
Id.
___
(citing
went on
to
"recklessness" or
It defined one type
of
"malice in fact" as
act
without lawful
excuse.'"
Id.,
___
of an injurious
n.9 (quoting
Doane v.
_____
think
that
factfinder
could
reasonably
accusation;
Viau
pointed
this implied
see it.
that it
folder
during
contained such
in a
the
evidence.
In fact,
been involved
at that
in a company
time was, at
theft.
best, a
called a liar
All
reasonable
commit
the
theft.
She
was
then
threatened
with
prosecution and loss of her job if she did not confess to the
theft.
also
think
legitimately be found.
that
"malice
in
fact"
could
from which
-1111
jury
could find
Justiniano,
either
that
plaintiff's
disliked
immediate supervisor,
plaintiff
personally
at the meeting.
But
but an inquisition.
or
was
of telling
In
fact,
Accusations
facts objectively.
conducted
fairly reeked
of malice.
It could
reasonably be
willful
excuse."
doing
Because
is
an
injurious
act
without
lawful
count
of
reversed.
determination was
on the slander
for
the jury.
a matter
of law
[MCRA] claim.
employee
on her
violated
in an
for judgment
Massachusetts Civil
Viau,
intimidation
of National's motion
the
MCRA
attempt to cause
Rights Act
using
her to
threats
relinquish her
12
11I.
No claim
and
See Mass.
___
individually.
-1212
11H,
11I.
The
district court
granted
National's
motion, finding
were
taken
pursuant
established by National.
the first finding.
plaintiff
to
any
policy
or
custom
Assuming,
without
deciding,
that
liable
employee has
court.
question of
1131 n.14
under the
not been
See, e.g.,
___ ____
whether an
MCRA for
addressed by any
Rodriques v.
_________
employer may
the actions
of its
Massachusetts state
Furtado, 575
_______
be held
N.E.2d 1124,
to decide issue
Chasdi, 511 N.E.2d 349, 354 (Mass. 1987) (remanding for trial
______
MCRA
claim asserted
against
private employer
-1313
for acts
of
employer's
agent,
without
respondeat superior).
to
answer this
Worcester, 924
_________
questioning
Similarly,
question.
See,
___
applicability
Dean
____
v.
City of
________
courts that
have addressed
of
the issue
The
have determined
of Boston, 738
_________
F. Supp.
Mass. 1990)
(private
employer).
"Absent
controlling
to
the
state's
prediction, `when
Because we
court
in diversity may
highest
court,
Vanhaaren v.
_________
precedent,
certify a state
is reasonably clear.'"
Ins. Co., 989 F.2d
________
state
or
undertake
a
law
its
(citation omitted).
[SJC] has
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
_________________________________________
-1414
with 42 U.S.C.
1983, except that the
______________________
Federal statute requires State action
whereas its State counterpart does not.
Batchelder
__________
Legislature did
constitutional tort,'"
N.E.2d 1128,
and thus
to create
`a vast
remedy to
1131
Bally v.
_____
omitted).
Rulings in
used to
U.S.C.
determine
1983
also
1983
whether
apply under
applicable
the MCRA.
See
may be
under
42
Duarte v.
___
Healy, 537
_____
the
Legislature was
immunity] when
Rights
aware of
it chose
Act after
this case
to pattern the
1983.").
qualified
Massachusetts Civil
Accordingly, we
______
look to cases
the
436
present action.
In Monell v.
______
U.S. 658
governments
may
be
liable
under
1983
employees.
for
the
-1515
or custom.
stated
that
Id. at
___
694.
Congress's
In
a concurrence,
intent,
as
Justice Powell
expressed
in
the
legislative
history of
limiting "the
rejection of
can best
vicarious liability."
Plaintiff
respondeat
1983,
as
wrongdoers, i.e., a
____
or any other
principle of
superior cannot
Monell concerns
______
be understood
that
Monell's
______
be grafted
only municipalities,
We
rejection
on the
MCRA because
of
may be
Although the
and
legislative
principles--such
applicable only
as
history
sovereign
to governmental
of
or
1983,
qualified
entities.
See
___
not
on
immunity-Monell, 436
______
U.S. at 690-94.
It is
of
the legislative
private corporations:
making municipalities
Congress
lacked the
local governments.
history of
certain
of Monell's discussion
______
1983
has no
members of Congress
relevance to
to impose
opposed
ground that
"positive" duties
We
on
do not believe,
on matters
pertinent to
all employers,
public or
private.
The
Court
to
make
-1616
stated,
for
example,
municipalities
that
vicariously
Congress
liable
declined
under
1983,
despite
unconstitutional
injuries throughout
justifications
acts
and
would
spread
the community.
Id.
___
equally
applicable
are
the
cost
at 693-94.
to
of
These
private
corporations.
The
1979,
one year
after Monell
______
was decided.
language of
legislature
the MCRA
intended
to
the MCRA in
Presumably, the
contains
expand
no indication
the
scope
that the
of
employer
persons,
whether
ch. 12,
or
not
11H ("Whenever
acting
under
1983.
any person
color of
law,
interfere
42
by threats, intimidation or
U.S.C.
1983 ("Every
subjects, or
causes to be
the
state
embracing the
legislature
knew
person] to
Moreover, it is clear
how
to
pass
statutes
E.g., Mass.
____
("Public employers
shall be liable
for injury
or
-1717
loss of
act
property . .
or omission of
the scope
1978).
of his
negligent or wrongful
Finally, the
legislative
. caused by the
history
employment .
.") (enacted
the
MCRA
indicating
that
in the
the
the
acts
claims
of their
employees.
Accordingly,
we
hold that
rest on the
the district
court's
judgment on
loss of consortium
the
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
affirmed.
Affirmed in part, reversed in part. No costs.
Affirmed in part, reversed in part. No costs.
______________________________________________
-1818
is