Lyons v. National Car Rental Systems, Inc. (of Delaware)

• Decision Date: 08 April 1994
• Docket Number: No. 93-2121,93-2121
• Citation: 30 F.3d 240
• Parties: 128 Lab.Cas. P 57,724, 9 IER Cases 1302 Theresa LYONS and Dennis Lyons, Plaintiffs, Appellants, v. NATIONAL CAR RENTAL SYSTEMS, INC. (OF DELAWARE), Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 240

30 F.3d 240

128 Lab.Cas. P 57,724, 9 IER Cases 1302

Theresa LYONS and Dennis Lyons, Plaintiffs, Appellants, v. NATIONAL CAR RENTAL SYSTEMS, INC. (OF DELAWARE), Defendant, Appellee.

No. 93-2121.

United States Court of Appeals First Circuit.

Heard April 8, 1994.

Decided July 27, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 12, 1994.

Matthew Cobb, with whom the Law Firm of Matthew Cobb, Boston, MA, was on brief for appellants.

Kathleen E. Cross, with whom Brenda M. Cotter, Gerald P. Tishler, and Brown, Rudnick, Freed & Gesmer, P.C., Boston, MA, were on brief for appellee.

Before BREYER, ^* Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff-appellant, Theresa Lyons (Lyons), appeals from the entry of judgment as a matter of law in favor of defendant-appellee, National Car Rental Systems, Inc. (National), on her claims of slander and violating the Massachusetts Civil Rights Act. Lyons had filed a nine count complaint in the district court against National after her termination. Six counts were dismissed pretrial on a motion for summary judgment. ¹ No appeal was taken from the summary judgment dismissal. The remaining three counts, which included a count by plaintiff's husband for loss of consortium, were tried before a jury. The trial was bifurcated. After plaintiff rested on her liability counts, defendant moved for judgment as a matter of law under Fed.R.Civ.P. 50. After briefing and argument by the parties, the court entered judgment for defendant as a matter of law.

Plaintiff filed a timely appeal which included the loss of consortium count. The issues on appeal are whether either or both of the liability counts should have been submitted to the jury. Our standard of review has been stated as follows:

A reviewing court applies the same standard that governed adjudication of 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 v. Rhode Island Dep't of Mental Health, 10 F.3d 17, 21 (1st Cir.1993) (citations omitted).

THE FACTS

In accord with the standard of review, we state the facts in the light most favorable to the plaintiff. Lyons worked for National at Logan International Airport in Boston, Massachusetts. She began working for National in 1983 as a rental representative, became a customer service manager in 1985, and was promoted to regional training manager in 1989. Lyons' immediate supervisor was Ellen Justiniano.

This action arose from events that occurred during a training conference held by National at its headquarters in Minneapolis, Minnesota, during the week of April 8, 1991. Lyons attended the conference along with her regional counterparts. During the conference, Lyons encountered some problems with her supervisor, Justiniano. The first day she arrived Lyons was in the elevator with Justiniano. Lyons looked at her keys and remarked, "I am a little bit confused." Whereupon Justiniano responded, "Well, what else is new?" She was told during one session by Justiniano that she was embarrassing her by nodding off and to go into the bathroom and put on some make-up. During one of the training sessions Justiniano slipped her a note which read, "Terry, I just put you through training. Why are you embarrassing me? Why aren't you answering any questions?"

On Friday, April 12, the last day of the conference, Justiniano pulled her aside and told her that the company was investigating a car theft from its office in Boston and Bryan Viau, National's chief of security, would like to speak to Lyons to get some input. Lyons agreed to meet with Viau at his office at ten o'clock.

After greeting Lyons in his office, Viau escorted her into a very small room. It had a round table with a box of tissues on it, which caught her eye, and chairs at the table two or three feet apart. One of the chairs was already occupied by a woman, Trudie Levesque. She was there because of National's policy when questioning employees of the opposite sex. Viau started the interview by asking Lyons how her week had been going. She responded by starting to cry. She told Viau that she had a bad week, that she had a bad relationship with her boss, and that her boss had not been very nice to her.

Lyons then asked Viau to please tell her what was going on. Viau pointed to a folder and said, "I have strong evidence that you were involved in a company theft." Lyons became hysterical and asked several times if she could see the evidence. Viau refused to show her the evidence. Lyons then said, "Why would I be crying so hard if I was guilty of doing something like that?" Viau responded by saying that it was people like her who cry a lot that are the guilty ones. He also said that it was people like her who know the ins and outs of the company that do things such as that. Viau also told her that she had the face of a good liar. Viau continued to say, "Terry, you know, you know the ins and outs. It's people like you. If you don't speak now, you will be prosecuted. You will lose your job." At some point Viau left the room. When he came back, Lyons asked him what was going to happen at this point. He said, "You go back to your job, and when we have the evidence we will prosecute you. Just go back and do your job." Viau also told her that if a trial "was to come forward," he would let her know. This ended the interview. During the interview, Lyons named her stepson as the possible thief because he had a prior record of stealing cars. She did this in an attempt to help Viau identify the real thief.

On cross-examination Lyons said that she never asked to leave the interrogation room. She testified that Viau never touched her or threatened to touch her, and that although Viau raised his voice during the interview, he never shouted. Based on facts that were represented to have been known by National, Lyons agreed that National had some basis for questioning her. She further testified on cross that she had the opportunity to say anything she wanted about the theft.

When Lyons got into the van to go to the airport for her trip home, she was still visibly very much upset. When asked by some of her colleagues what was wrong, she told them that she had been accused of car theft. After arriving home, Lyons told members of her family about the interview and accusation of car theft. She went back to work in National's Boston office.

Viau's questioning of Lyons was prompted by a prior investigation which disclosed evidence suggesting that the theft was an inside job involving someone with the name of Lyons. The stolen car was ultimately found in the possession of a Barbara Lyons. The only link between Barbara Lyons and the plaintiff was that, unknown to plaintiff, Barbara Lyons was having a relationship with plaintiff's brother-in-law, Patrick Dello Iacono, who was a sergeant on the Everett Police department. Viau decided to interview plaintiff after consultation with her supervisors, Foley, Ceruolo, and Justiniano.

THE SLANDER COUNT

Because this is a diversity case, Massachusetts law applies. We agree with the district court that the statement, "National has strong evidence you are involved in a car theft," was slanderous. Galvin v. New York, New Haven and Hartford R.R. Co., 341 Mass. 293, 168 N.E.2d 262, 294 (1960) (accusations of crime actionable without proof of special damage); Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 598 (Mass.1943) (same).

The district court held that the other statements made during the interview were not slanderous: "You have the face of a good liar"; "It's people like [you] who cry that are the guilty ones"; "It's people like [you] who know the 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 not think that these statements should have been excised from the accusation of car theft. All the statements made by Viau were part and parcel of that accusation. This is not a situation where statements are made at different times and in different contexts. The statements were made during one interview. National accused plaintiff of car theft, and because she denied it, said she was a liar. Part of the theft accusation was that as an employee of National, she had the knowledge of company practice and the opportunity to commit the theft. She also was told that if she did not confess to the theft she would be prosecuted. The statements, taken as a whole, constituted a single accusation that Lyons had stolen a company car and an attempt by National to have her confess to the accusation.

Defendant argues that because plaintiff did not specifically object to the district court rulings finding the statements not slanderous during the Rule 50 hearings, she is precluded from raising the issue here. There is no merit to this contention. The plaintiff argued that the statements were slanderous during the Rule 50 hearing. Tr., 2d day, pp. 95-97. And she also argues to the same effect in her appellate brief. Plaintiff's Brief at 13. This was sufficient to preserve the issue for review. There is no requirement that specific objections to the court's rulings be made during a Rule 50 hearing. It suffices that the plaintiff raise the issues so that the court understands what they are. This was clearly done here. The requirement that specific objections be made to the introduction of evidence or to the court's final charge to the jury do not, contrary to defendant's suggestion, apply to a Rule 50 hearing.

Although defendant has not argued lack of publication on appeal, the district court did express...