Bowman v. Heller

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation651 N.E.2d 369,420 Mass. 517
Parties, 11 IER Cases 515 Sylvia Smith BOWMAN v. David HELLER. 1
Decision Date13 June 1995

Alan M. Dershowitz (Michael R. Schneider, with him), Cambridge, for defendant.

Nancy S. Shilepsky (Maria R. Durant, with her), Boston, for plaintiff.

Robert S. Mantell and Kevin G. Powers, Boston, submitted briefs for Massachusetts Chapter of the Nat. Employment Lawyers Ass'n, amicus curiae.

Lynn Hecht Schafran, Deborah Ellis, New York City, and Sydelle Pittas, Carolyn Burt, Amy Drachman and Gretchen Kendall, submitted briefs for Women's Bar Ass'n, amicus curiae.

Mary L. Bonauto, Jamaica Plain, submitted briefs for Gay & Lesbian Advocates & Defenders, amicus curiae.

Ozell Hudson, Jr., Barbara J. Dougan, Louis A. Rodrigues and Priscilla E. Johnson, Boston, submitted briefs for Lawyers' Committee for Civil Rights Under Law of the Boston Bar Ass'n & others, amicus curiae.

Ann M. Kappler and Jodie L. Kelley, Washington, DC, submitted briefs for Feminists for Free Expression, amicus curiae.

Laura R. Handman, William S. Adams and Edward J. Davis, New York City, submitted briefs for Nat'l Writers Union & others, amicus curiae.

George E. O'Brien, submitted briefs for Hotel Employees/Restaurant Employees Intern. Union Local 26, amicus curiae.


ABRAMS, Justice.

The defendant, appealing from a judgment that was based in part on his intentional or reckless infliction of emotional distress on the plaintiff, seeks refuge in the fact that at the time of his wrongdoing the plaintiff was a candidate for election to the office of president of their union local. From this, the defendant argues that the First Amendment to the United States Constitution protects him from liability in the absence of proof of actual malice. The defendant's claim fails from its inception because the activity on which liability was based was, on the defendant's own admission, not intended to influence the union election. The Supreme Court has distinguished plaintiffs' claims for defamation or intentional infliction of emotional distress on the basis of the plaintiffs' prominence with regard to public controversies relevant to their causes of action. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Because there was no evidence of a public controversy, the plaintiff was neither a public figure nor a limited purpose public figure.

After the election, the plaintiff sought recovery on four related claims: one count of intentional infliction of emotional distress; one count of reckless infliction of emotional distress; 2 and two claims under the Massachusetts Civil Rights Act (MCRA), G.L. c. 12, § 11I (1992 ed.). 3 After a jury-waived trial judgment was entered in favor of the plaintiff, and damages were awarded in the amount of $35,000. The trial judge ruled that "any one of the plaintiff's claims ... [was] a sufficient basis" for the $35,000 judgment, but refused to award "duplicative" damages. The defendant appeals. We transferred the case to this court on our own motion. We conclude that the judgment based on the tort claim of intentional or reckless infliction of emotional distress should be affirmed. 4

I. Facts. At the time of the incident which gave rise to this litigation, the plaintiff, Sylvia Smith Bowman, was a sixty year old supervisor in the Worcester office of the Department of Public Welfare (department). She began working as a social worker for the department in 1967, and was a longstanding and active member of Local 509 of the Service Employees International Union (union). In the 1987 union election, the plaintiff challenged the incumbent president of the local chapter of the union.

In October, 1987, while the plaintiff was on an approved leave to campaign in the union election, the defendant, David Heller, an employee in the plaintiff's office who supported the incumbent president, created two distinct photocopied representations of the plaintiff by superimposing a photograph of her face and name on two different photographs of women striking lewd or masturbatory poses. The photograph of the plaintiff's face was taken from a campaign card she had distributed to union members. The photographs on which the defendant superimposed the plaintiff's face were taken by the defendant from pornographic magazines. In one of the photographs, the model is nude from the waist down, except for garters, and is posed toward the camera with her legs wide apart as she holds a banana next to her exposed breast. In the other photograph, the model is entirely naked, and appears to be engaged in masturbation. The representations were crafted by the defendant during regular office hours and reproduced on photocopiers owned by the department. The defendant then distributed his handiwork to five coworkers in the Worcester office. Subsequently, the representations were reproduced by employees other than the defendant and distributed to a wider office audience.

The trial judge credited the defendant's claim that, in distributing the caricatures, "it was not his intent to sway votes or to induce people not to vote for [the plaintiff]," and that he sought to make the plaintiff "look ridiculous." The trial judge also credited Heller's statement that he wanted "[t]o make sure they wouldn't be seen by [the plaintiff]," because they were "a private satire among a select group of friends."

When the plaintiff returned to the office from her campaign leave in November, 1987, she learned of the sexually explicit nature of the photocopies and their distribution throughout the office. The defendant made various allegations that the plaintiff harbored a desire for revenge, and that she made various crude references to men in general and the defendant in particular.

The trial judge found that once the plaintiff saw the pictures she was "shocked" and experienced severe stress, crediting her testimony that she felt "degraded, publicly humiliated, and vulnerable upon seeing the photocopies; [and that] she also felt that the matter was too serious for her to remain silent." The judge also credited the testimony of an expert who explained the sequelae associated with posttraumatic stress disorder (PTSD) and opined that the plaintiff suffered from PTSD and that the trauma of being represented in the workplace in the compromising caricatures created by a coworker was the cause. According to the record, the plaintiff had to undergo, and still is undergoing, psychological therapy for PTSD. The trauma of the event had a negative impact on her ability to function as productively as she had for many years at her job. 5 The judge found that this trauma was unrelated to the plaintiff's loss in the union election.

As a result of her distress about the photocopies, the plaintiff filed formal complaints with department administrators and the union. The department officials determined that the defendant's conduct was sexually harassing, reprimanded the defendant, and explained to the plaintiff that "the production and limited distribution of sexually explicit material by [the defendant] which contained a reproduction of your facial features ... subjected [you] to highly improper and unacceptable behavior which constituted sexual harassment." The union trial board concluded that the defendant's conduct was unbecoming to a union member. The union's determination resulted in a public apology by the defendant to the plaintiff.

Subsequently, the plaintiff filed her tort claims, and amended her complaint to add her statutory claims. The defendant filed counterclaims alleging the plaintiff had defamed him. The trial judge allowed the plaintiff's motion for summary judgment on the defendant's counterclaims. The defendant did not appeal the disposition of his counterclaims. Those claims are not before us. 6

II. The plaintiff is neither a public figure nor a limited purpose public figure. The trial judge ruled that the plaintiff was a public figure because she voluntarily became involved in the local union election. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Whether the plaintiff is a public figure is a question of law. See Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 165-169, 99 S.Ct. 2701, 2706-2708, 61 L.Ed.2d 450 (1979); Materia v. Huff, 394 Mass. 328, 331, 475 N.E.2d 1212 (1985). The Supreme Court has said that an individual plaintiff's status is context-dependent and thus determined "by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the [tort liability]." Gertz v. Robert Welch, Inc., 418 U.S. 323, 352, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789 (1974). "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of [her] life." Id. The fame required for an individual to be a public figure for all purposes, as opposed to a limited purpose public figure, is very great; the individual must be a "household name" on a national scale. Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.), cert. denied, 484 U.S. 870, 108 S.Ct. 200, 98 L.Ed.2d 151 (1987) (although plaintiff was "highly prominent individual, especially in business circles," She was not a general purpose public figure for "all aspects" of his life where his "celebrity in society at large [did] not approach that of a well-known athlete or entertainer--apparently the archetypes of the general purpose public figure"). The plaintiff clearly is not a general purpose public figure.

The Federal Circuit Courts of Appeal have developed various tests to aid judges in applying the two-prong limited purpose public figure standard set forth in Gertz. 7 See, e.g., Clyburn v....

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