Opinion
Civil Action No. 3:98-CV-1235-D.
March 10, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment, filed November 1, 1999, its brief in support thereof, and all responses and replies thereto. Plaintiff sues for sexual harassment, gender discrimination, defamation, intentional infliction of emotional distress, invasion of privacy, and assault and battery. Defendants now move for summary judgment on all claims, except for the individual assault and battery claim against Defendant Giles ("Giles"), and separately for a determination that the Plaintiff states no claims against Defendant United Parcel Service of America, Inc. ("UPSA").
Plaintiff refers to "gender discrimination" when alleging sexual harassment in her First Amended Complaint. At the hearing on March 1, 2000, in open court, Plaintiff stipulated that her "gender discrimination" claim is part of her sexual harassment claim. Specifically, the following exchange occurred:
The Court: Is it your position that if I were to grant summary judgment on sexual harassment you would still have a gender discrimination claim?
Counsel: No, ma'am.
Having considered the record and the applicable law, for the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.
I. Background
A. Giles' Alleged Harassment
Plaintiff Kelli Bell ("Bell") has been employed by Defendant United Parcel Service, Inc. ("UPS") for approximately nine years. She is currently an employee in the billing department of the Accounting Service Center ("ASC") of UPS in Dallas. Giles has been employed as a UPS supervisor of the ASC at all times relevant to Plaintiff's causes of action. Defendant Richard Pariseau ("Pariseau") has been employed by UPS as the Controller of the ASC, and exercises supervisory control over all the day-to-day activities in the ASC.
Bell alleges that beginning in October 1996, through July 1997, Defendant Giles subjected her to sexual harassment, which had the effect of explicitly interfering with her job performance and creating an intimidating, hostile, or offensive working environment. Specifically, Bell contends that she was subjected to constant, pervasive, and unwelcome sexually harassing remarks and demands for sexual favors from Giles. She states that Giles repeatedly interfered with her job performance by requesting that Bell show him her breasts, as well as repeatedly inquiring about her sexual activities and sending unwelcome sexually harassing calls and electronic mail messages to her. She further alleges that UPS failed to take any action to protect her from Giles' conduct. Bell complained of the conduct to Robert Shotkoski and Sam Gutierrez, both supervisors in her department, in October 1996, and May 1997, respectively.
Bell further contends that she was subjected to several uninvited acts of assault and battery, including Giles putting his arms around her waist, grabbing her arm as she passed him in the corridor, and putting his hands on her shoulders while she was working at her desk.
On July 17, 1997, Bell submitted a formal memorandum to supervisor Shotkoski regarding her concerns about Giles' conduct. Shotkoski met with Giles to discuss Bell's complaint. She claims that immediately after the meeting, Giles allegedly walked to Bell's cubicle work area and grabbed her wrist and arm and threatened her about her sexual harassment complaint. The next day, July 18, 1997, Giles was transferred to another facility, and Giles and Bell have not worked at the same location since that date.
B. Pariseau's Alleged Defamation
UPS conducts an employee opinion survey at the ASC on an annual basis. Prior to the 1998 survey, the ASC was provided with a computer diskette from the corporate offices of UPS, which included questions the employees were to answer. In September of 1998, the diskette disappeared. As a result, ASC management designed a separate set of questions which, according to Bell, provided the ASC a greater overall score than it would have otherwise received.
On September 10, 1998, Bell sent an e-mail message to an ASC manager, indicating that she and other employees wished to respond to the original questions from the corporate diskette, and not the questions created in-house. On the same date, apparently in response to Bell's e-mail, Pariseau summoned Bell to his office. Bell, claiming she feared retaliation for filing her sexual harassment claim, requested a co-worker, Julie Vines, to join her in the meeting.
During the meeting, Pariseau is alleged to have stated that Bell had "created the situation of the missing diskette" and was "not fit to be a Lead [Clerk]" at the ASC. These statements occurred in front of Vines. Additionally, on October 31, 1998, Pariseau told Gutierrez (one of Bell's supervisors) that it was dangerous for any male employee to be alone with Bell because of her sexual harassment charge.
As a result of the above-mentioned conduct, Bell filed charges against UPS, UPSA, Giles and Pariseau under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1). She alleges specifically that Defendants are liable for sexual harassment (also labeled by Bell as gender discrimination), defamation, intentional infliction of emotional distress, invasion of privacy, and assault and battery.
II. Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate when the pleadings and record evidence show that no genuine issue of material facts exists and that, as a matter of law, the movant is entitled to judgment. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes about those facts will preclude the granting of summary judgment. Id. In a motion for summary judgment, the burden is on the movant to prove that no genuine issue of material fact exists. Latimer v. Smithkline French Lab., 919 F.2d 301, 303 (5th Cir. 1990).
The nonmoving party, in order to resist a motion for summary judgment, must make a positive showing that a genuine dispute of material fact exists. Anderson, 477 U.S. 242 at 250. The record before the court must be considered in the light most favorable to the opposing party. Harrison v. Byrd, 765 F.2d 501 (5th Cir. 1985). However, bare allegations in briefs and pleadings are insufficient to withstand summary judgment. Alizadeh v. Safety Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
III. Analysis and Decision
Defendants move for summary judgment on all of Plaintiff's claims, except the individual battery claim against Giles. The Court grants the Defendants' motion for summary judgment on Plaintiff's claims of defamation, intentional infliction of emotional distress, and invasion of privacy for the following reasons and for reasons stated on the record during a hearing held on March 1, 2000. The Court also grants the dismissal of UPSA for reasons explained below.
A. Defamation
Bell complains of two separate incidents of defamation by Defendant Pariseau. The Court finds that neither statement is defamatory. Alternatively, the Court finds that neither statement is actionable under Texas law, because both statements were subject to a qualified privilege.
If Bell is claiming that the memo attached as Exhibit D to her Amended Complaint is defamatory, the Court finds as a matter of law that no Defendant wrote the memo nor is any Defendant legally responsible for its contents.
In the undisputed context in which it was made, Pariseau's alleged statement, "[Y]ou are responsible for the situation with the missing diskette," cannot, as a matter of law, be construed as defamatory. In order for a statement to be defamatory, it must be communicated to a third person in such a way that the third person understood a defamatory meaning. Accubank Mortgage Co. v. Drummonds, 938 S.W.2d 135, 147 (Tex.App.-Fort Worth 1996, writ denied). Here, Julie Vines, the co-worker present during the conversation, did not understand the alleged statement to imply that Bell was a "thief," as Bell suggests. Instead, Vines testified that she understood Pariseau was suggesting Bell was responsible for the "uproar" surrounding the missing diskette. (Plaintiff's Appendix at 129). Thus, considering the entire context of the communication, Pariseau's words are not reasonably capable of a defamatory meaning. Schauer v. Memorial Care Sys., 856 S.W.2d 437, 446 (Tex.App.-Houston [1st Dist.] 1993, no writ). Statements may not be made defamatory by taking them out of their context. Raymer v. Doubleday Co., 615 F.2d 241, 245 (5th Cir. 1980). The context confirms that the statement made by Pariseau does not suggest that Bell is a thief, but rather that Bell incited her fellow employees to complain about the survey on the diskette, and thus created interoffice turmoil. As a matter of law, the court finds that the statement could not be determined by a reasonable person to be defamatory. Musser v. Smith Protective Serv., 723 S.W.2d 653, 655 (Tex. 1987).
Pariseau's second statement, that fellow supervisor Gutierrez should stay away from Bell, is similarly not defamatory. In order for Pariseau's statement to be actionable, the statement must be false. TEX. CIV. PRAC. REM. CODE ANN. § 73.005 (Vernon 1986). The alleged statement at issue is merely an expression of opinion which is protected free speech. El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 798-800 (Tex.App.-El Paso 1986, writ ref'd n.r.e). Pariseau opined to Gutierrez about the appropriate course of conduct as a result of Bell's charges of harassment. Although offensive, unpleasant and objectionable to Bell, the statement is not false and actionable under the law of defamation. Schauer, 856 S.W.2d at 446.
Alternatively, even if the statements could be construed to be defamatory, the Court finds that they are privileged, and thus cannot be actionable. Both statements were about work related issues and the only persons present were UPS employees; therefore, absent a showing of malice, they cannot form a basis for defamation. Danawala v. Houston Lighting Power Co., 14 F.3d 251, 254 (5th Cir. 1993). Generally speaking, Texas law holds that a communication made on a subject matter about which the person making the statement has a legitimate interest is privileged if made to persons having a corresponding interest. Boze v. Branstetter, 912 F.2d 801, 806 (5th Cir. 1990). This privilege protects statements made by an employer concerning an employee. Randall's Food Mkt., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). The privilege is "based on a public policy that recognizes the need for free communication of information to protect business and personal interests. To encourage communication, the courts have held it necessary to afford protection from liability for misinformation given in an appropriate effort to protect or advance the interests involved." Gaines v. CUNA Mut. Ins. Soc'y, 681 F.2d 982, 986 (5th Cir. 1982). Whether a qualified privilege exists is a matter of law. Boze, 912 F.2d at 806.
Both incidents are within the qualified privilege afforded an employer under Texas law. The September 10, 1998 meeting included only parties interested in the survey which was contained on the missing diskette. Plaintiff attempts to defeat the privilege by arguing that Vines, Bell's coworker who attended the meeting, had no interest in Bell's work performance. However, the meeting was called in order to discuss Bell's position regarding the survey and the missing diskette. Bell invited Vines along to the meeting. She can not now use Vines as a means to overcome the qualified privilege by arguing that the meeting was about her work performance. The evidence is clear that the purpose of the meeting was to discuss the missing diskette situation. Vines, as a UPS employee also interested in the diskette, had an interest in the content of the meeting.
The second incident, Pariseau's statement to Gutierrez that he should stay away from Bell because of her sexual harassment claim, is also privileged. As supervisors at the ASC, both Pariseau and Gutierrez had an interest in Bell's sexual harassment claim. Therefore, even if Pariseau's statement was a defamatory communication, it is protected. Danawala, 14 F.3d at 254.
Bell may only overcome the privilege by showing that Pariseau made such statements with actual malice; that is, Plaintiff must show that Pariseau made the allegedly defamatory statements knowing them to be false, or with a high degree of awareness of their probable falsity. Seidenstein v. Nat'l Medical Enter., 769 F.2d 1100, 1103-04 (5th Cir. 1985). Plaintiff has failed to raise a fact issue related to actual malice.
Plaintiff has argued that Pariseau's conduct in the September 10 meeting is enough to show Pariseau's malice. Specifically, Plaintiff points to Vines' testimony that it seemed the purpose of the meeting was to "break [Bell] down." However, this statement is not enough evidence to raise a genuine issue of fact as to whether Pariseau made the statements about (1) Bell's involvement with the diskette, or (2) the dangers of being alone with her, with the requisite state of mind. Danawala, 14 F.3d. at 255. Evidence that an employer's attitude is "abusive, mean, and vindictive" is insufficient for a reasonable juror to infer actual malice — that Pariseau knew the statements were false or had a high degree of awareness of their probable falsity. Id. at 256. Therefore, the privilege applies, and Plaintiff's defamation claim is thus unsupportable as a matter of law.
B. Intentional Infliction of Emotional Distress
The record before the Court reveals that, as a matter of law, Pariseau's and Giles' conduct did not "exceed all possible bounds of decency," nor was it "atrocious" or "utterly intolerable in a civilized community," as required by Texas law. See Diamond Shamrock Refining and Mktg. Co. v. Mendez, 844 S.W.2d 198, 201-02 (Tex. 1992) (finding that even accepting as true plaintiff's charges that employer untruthfully depicted him as a thief, this conduct is not sufficiently outrageous to raise a fact issue); Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31, 33-34 (5th Cir. 1992) (holding that Texas law has repeatedly stated that a claim for intentional infliction of emotional distress will not lie for mere "employment disputes"); Wilson v. Monarch Paper Co., 939 F.2d 1138, 1142-45 (5th Cir. 1991); Dean v. Ford Motor Credit Co., 885 F.2d 300, 306-07 (5th Cir. 1989) (holding that while it may be illegal for an employer to create unpleasant and onerous working conditions designed to force an employee to quit, it is not the sort of conduct, "as deplorable as it may sometimes be," that constitutes "extreme and outrageous conduct.") See also Southwestern Bell Mobile Sys. v. Franco, 971 S.W.2d 52 (Tex. 1998). Wayne v. Dallas Morning News, 78 F. Supp.2d 571 (N.D.Tex. 1999); Garrett v. Constar, Inc., No. CIV.A.397-CV-2575, 1999 WL 354239 (N.D.Tex. May 25, 1999); Keller v. Roadway Express, No. CIV.A.3:97-CV-1504-P, 1998 WL 133097 (N.D.Tex. March 19, 1998).
Plaintiff claims that Defendants did not raise the issue of the challenged conduct not being "extreme and outrageous" in their opening brief. Although not specifically detailed, the Court finds that the issue was sufficiently raised to provide fair notice that it was being pursued.
C. Invasion of Privacy
Texas law requires that an invasion of privacy claim show (1) an intentional intrusion upon the solitude or seclusion of another or her private affairs, which (2) would be highly offensive to a reasonable person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
Texas law does not support such a claim when it derives from allegations of offensive comments, inquiries, and/or inappropriate touching. Cornhill Ins., P.L.C. v. Valsamis, Inc., 106 F.3d 80, 85 (5th Cir. 1997). See also Wilson v. Sysco Food Serv. of Dallas, Inc., 940 F. Supp. 1003 (N.D.Tex. 1996) (an inquiry into plaintiff's private sexual activities does not support a claim for invasion of privacy). Therefore, Plaintiff's claim for invasion of privacy is dismissed.
D. United Parcel Service of America, Inc.
Defendants argue that UPSA is not Plaintiff's employer and therefore is not an appropriate party to this suit. According to Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (5th Cir. 1999):
[T]he rule has emerged that superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer. Factors considered in determining whether distinct entities constitute an integrated enterprise are (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.Id. at 615 (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983)); See also Garcia v. Elf Atochem N. Am., 28 F.3d 446, 450 (5th Cir. 1994), abrogated on other grounds by Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998 (1998) (applying Trevino to a Title VII action).
Traditionally, the second factor is considered the most important. In analyzing the issue, courts have focused almost exclusively on one question: which entity made the final decisions regarding employment matters relating to the person claiming discrimination. See, e.g., Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997) (citing Trevino, 701 F.2d at 404).
Contending that UPSA, the parent company of UPS, was her employer for Title VII purposes, Bell points to the following evidence: (1) her paychecks were issued by UPSA; (2) she owns stock in UPSA; and (3) UPSA publishes all employee handbooks. This evidence is legally insufficient to support a finding for Title VII purposes that UPSA was Bell's employer. There is no evidence that UPSA had anything to do with the final decisions regarding Bell's employment. To the contrary, all decisions were made within Bell's department by her supervisors at UPS. The evidence is that UPSA is a holding company which exercises no control over the supervision, disciplining, promoting, paying or transferring of UPS employees. Therefore as a matter of law, UPSA is not Bell's "employer" for Title VII purposes, and is dismissed from this lawsuit.
D. Sexual Harassment and Assault and Battery
The Court is not convinced by the summary judgment evidence that Plaintiff cannot, as a matter of law, prevail on these claims. Therefore, summary judgment will be denied.
E. Negligence and Retaliation
Although alluded to in footnote 1 of Plaintiff's Response, the Court finds that the Plaintiff does not plead claims for negligence and retaliation, and thus will not be permitted to pursue such claims at trial.
IV. CONCLUSION
For the reasons stated above, the Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Plaintiff's claims for defamation, intentional infliction of emotional distress, and invasion of privacy are DISMISSED WITH PREJUDICE. Defendant United Parcel Service of America, Inc. is DISMISSED WITH PREJUDICE as a party from this cause of action.
Defendants' Motion for Summary Judgment as to Plaintiff's claims of sexual harassment, and assault and battery are denied.
SO ORDERED.
March 10, 2000.
BARBARA M. G. LYNN UNITED STATES DISTRICT JUDGE