Farrior v. H.J. Russell & Co.

• Decision Date: 19 April 1999
• Docket Number: No. Civ.A. 1:98-CV-2644-TWT.,Civ.A. 1:98-CV-2644-TWT.
• Citation: 45 F.Supp.2d 1358
• Parties: Bonnie FARRIOR, Plaintiff, v. H.J. RUSSELL & COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

45 F.Supp.2d 1358

Bonnie FARRIOR, Plaintiff, v. H.J. RUSSELL & COMPANY, Defendant.

No. Civ.A. 1:98-CV-2644-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

April 19, 1999.

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Jack Dodd, Office of Jack E. Dodd, Gainesville, GA, for Bonnie Farrior, plaintiff.

David Michael Brown, Lisa Lynn Ballentine, Tracie Y. Johnson, Smith Gambrell & Russell, Atlanta, GA, for H.J. Russell & Company, defendant.

ORDER

THRASH, District Judge.

This case is brought pursuant to 42 U.S.C. §§ 1981 and 1982. Plaintiff also asserts pendant state claims alleging defamation, fraud, intentional infliction of emotional distress, and breach of contract. At issue is the Defendant's termination of Plaintiff as a resident apartment manager and her eviction from her rent-free apartment. The case is before the Court on consideration of Defendant's Motion for Summary Judgment [Doc. No. 1]. For the following reasons, the motion should be granted.

I. BACKGROUND

Plaintiff Bonnie Farrior is an African-American woman. She was employed with Defendant H.J. Russell & Company, an African-American owned and operated business. Plaintiff worked as an on-premises manager of Lake Forest Apartments, a residential apartment complex owned and operated by Defendant. She was terminated for performing services and accepting compensation from a vendor of Defendant. Such action violates the company's conflict of interest policy. With her termination, Plaintiff lost the apartment in which she lived rent-free as partial compensation for her work as manager.

Plaintiff assumed her position of resident services director of Lake Forest Apartments in Gainesville, Georgia in July, 1996. For compensation she received an hourly salary in addition to her rent-free apartment. In October, 1996, Plaintiff informed her supervisor at H.J. Russell & Co. of alleged improprieties by the former manager of the apartment complex. Plaintiff alleged that her predecessor made payments to a vendor for services not performed. Upon investigation, Defendant learned that Plaintiff had performed services for and received compensation from the same vendor. Such action violated Defendant's conflict of interest policy. Consequently, Plaintiff was terminated on October 11, 1996.

Because her apartment constituted part of her compensation, Defendant required Plaintiff to vacate the unit. Ms. Paulette Baker, an employee of Defendant, traveled to the apartment complex to inform Plaintiff of her termination for violating the company's conflict of interest policy. Plaintiff refused to return the keys to the management office. Plaintiff also threatened to "slam [Ms. Baker's] skinny ass into the wall." [Baker Affid., ¶ 8; Farrior Dep. at 44]. When Plaintiff became abusive, Ms. Baker called the police. When the officer arrived, Ms. Baker said that Plaintiff was terminated because Plaintiff "had received money from a vendor ..." [Farrior Dep. at 44]. When Plaintiff refused to move out of her apartment, Defendant initiated dispossessory proceedings. On November 20, 1996, after conducting a hearing on the matter, a Hall County Magistrate Judge ordered Plaintiff to vacate the apartment.

Subsequently, Plaintiff filed suit in Fulton County Superior Court alleging violations of 42 U.S.C. §§ 1981 and 1982. Plaintiff also asserted claims of defamation, fraud, intentional infliction of emotional distress, and breach of contract.¹ Defendants removed this action to this Court pursuant to 28 U.S.C. § 1441 et seq., based on federal question jurisdiction.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the pleadings, depositions and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non movant. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgement must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. DISCUSSION

A. DEFAMATION

Plaintiff's complaint first asserts a claim for defamation. Specifically, Plaintiff alleges that Ms. Baker accused Plaintiff of stealing money. Plaintiff contends this accusation constituted a defamation in reference to her profession. Under O.C.G.A. § 51-5-4, maliciously making charges against another in reference to his trade or profession constitutes slander per se; damages are thus inferred. Plaintiff's prior position as a residential apartment manager suffices for a trade since Georgia courts have interpreted "trade" to encompass employment by another. Rogers v. Adams, 98 Ga.App. 155, 105 S.E.2d 364 (1958).

The remarks on which Plaintiff relies, however, are insufficient as a matter of law to constitute defamation. "For a defamatory oral utterance to be slanderous as imputing a crime, the statement must not only be such as may convey to the auditor the impression that the crime in question is being charged, but it must be couched in such language as might reasonably be expected to convey that meaning to any one who happened to hear the utterance." Anderson v. Fussell, 75 Ga. App. 866, 869, 44 S.E.2d 694 (1947); See also Christian v. Ransom, 52 Ga.App. 218, 219, 183 S.E. 89 (1935) (holding that plain and unambiguous words that do not impute a crime cannot be enlarged and extended by innuendo). The only remarks by Defendant that Plaintiff alleges were defamatory are those Ms. Baker made to the police officer. In response to the police officer questioning why Plaintiff was being terminated, Ms. Baker replied that Plaintiff "had received money from a vendor ..." [Farrior Dep. at 44].

Q: What exactly did Paulette (Ms. Baker) say to you?

A: Well, the police was asking what was going on and, you know, why was I being terminated. And she said that I had been taking money from a vendor.

Q: Did she say that you were stealing? Did she use that word, stealing?

A: Let's see. Taking money from a vendor. No, I don't think she said stealing. But she said taking money from a vendor. So taking, stealing, taking money from a vendor.

* * * * * *

Q: You understood her to mean that you were stealing money from a vendor and not being compensated by the vendor?

A: That's right. Exactly.

[Farrior Dep. at 59].

Ms. Baker's remarks do not fit the above definition of a defamatory utterance because they do not reasonably convey the imputation of theft. Moreover, Ms. Baker denies ever accusing Plaintiff of stealing. Plaintiff's testimony reveals the truth in Ms. Baker's denial.

In addition to Ms. Baker never using the word "stealing," Plaintiff admits that she knew her termination ensued not from theft but from unauthorized "moonlighting." Plaintiff testified that Ms. Baker "told me that I was being terminated because I had received money from ATH Services." [Farrior Dep. at 43]. Ms. Baker had discovered these payments while investigating charges Plaintiff herself raised about her predecessor. As a result of this investigation, Ms. Baker learned that Plaintiff performed cleaning and repairs to an apartment unit for ATH Services for $55.00. Defendant's conflict of interest policy prohibits employees such as Plaintiff from working for and being paid by a vendor of the company without prior approval from Defendant's chief executive officer. Plaintiff signed an acknowledgment of her receipt and understanding of this policy upon her employment with Defendant. In light of these facts, Plaintiff's subjective belief that the phrase "taking money from a vendor" constituted a defamatory accusation of theft is unfounded. Georgia courts will not "hunt for a strained construction [of allegedly defamatory words] in order to hold the words libelous." Hardboard Machinery Co. v. Coastal Prod. Corp., 289 F.Supp. 496, 498 (M.D.Ga.1967).

Plaintiff's argument that Defendant lacks proof of Plaintiff receiving money from the vendor does not mend the flaw in her claim. Assuming Defendant has no evidence of Plaintiff receiving compensation from a vendor, Ms. Baker's remarks still did not accuse Plaintiff of theft. The evidence fails to establish a prima facie case that slanderous statements were made. Accordingly, Defendant is entitled to summary judgment on Plaintiff's claim of defamation in Count I of her complaint.

Furthermore, the doctrine of respondeat superior does not apply in slander cases. A corporation is not liable for the slanderous utterances of an agent acting within the scope of his employment, unless it affirmatively appears that the agent was expressly directed or authorized to slander the plaintiff. Lepard v. Robb, 201 Ga.App. 41, 42, 410 S.E.2d 160 (1991); Chambers v. Gap Stores, 180 Ga.App. 233, 348 S.E.2d 592 (1986); Anderson v. Housing Auth. of Atlanta, 171 Ga.App. 841, 321 S.E.2d 378 (1984). There is no evidence in the record that the Defendant affirmatively authorized or directed Ms. Baker to slander Plaintiff. Defendant is entitled to summary judgment as to the defamation claim on this ground as well.

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count III, Plaintiff asserts a claim for intentional infliction of emotional distress. To state such a claim in Georgia, Plaintiff must show (1) conduct that was intentional or reckless; (2) that this conduct was extreme and outrageous; (3) and caused emotional distress (4) that was severe. Amstadter v. Liberty Healthcare Corp., 233 Ga.App. 240, 242-43, 503 S.E.2d 877 (1998). Plaintiff bears...