Phillips v. Smalley Maintenance Services, Inc.

CourtSupreme Court of Alabama
Citation435 So.2d 705
PartiesBrenda PHILLIPS, Plaintiff, v. SMALLEY MAINTENANCE SERVICES, INC., a corporation; and Ray Smalley, individually, Defendants. CER 24.
Decision Date03 June 1983

Michael L. Roberts, Gregory S. Cusimano, Gadsden, for plaintiff.

William H. Mills, Birmingham, for defendants.

JONES, Justice.

In this action, pursuant to 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Act of 1964, before the United States Court of Appeals for the Eleventh Circuit, certain pendent Alabama state law claims are presented for review. Because resolution of one pendent claim is dependent upon a question of law of the State of Alabama for which there seems to be no clear controlling precedent under our prior holdings, the Court of Appeals has certified to this Court the following questions:

1. Does the law of the State of Alabama recognize the tort of invasion of privacy in the form described in § 652B, Restatement (Second) of Torts (1977) and set forth below?

"One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."

2. If the answer to Question 1 is "yes," must information about the plaintiff's "private activities" actually be acquired through intrusion before the cause of action is established?

3. If the answer to Question 1 is "yes," is communication to third parties of information about a plaintiff's "private activities," obtained as a result of the wrongful invasion, necessary to establish a claim for this form of tortious "invasion of privacy"?

4. If the answer to Question 1 is "yes," must the acquisition or attempted acquisition of information about the plaintiff be undertaken surreptitiously in order for a cause of action to be made out?

5. If the answer to Question 1 is "yes," is an invasion of psychological solitude sufficient to establish the cause of action or is an invasion of a physical place of solitude or seclusion necessary?

6. Do the facts of this case support a claim under Alabama law for "the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities"?

7. If the answer to Question 1 is "yes," are damages recoverable for medical problems, including chronic anxiety, which are causally connected to the wrongful invasion or intrusion?


Plaintiff Brenda Phillips (Phillips) was formerly employed by Defendant Smalley Maintenance Services, Inc. (SMS). SMS and the president and principal owner of SMS, Appellant Ray Smalley (Smalley), were found by the trial judge, after a special advisory verdict by the jury, to have wrongfully discharged Phillips in violation of Title VII for her refusal to engage in sexual activities with Smalley. On this claim, Phillips was awarded lost wages of $2,666.40. The trial judge also found that she had been subjected to actionable sexual harassment prior to the wrongful discharge, but that no actual damages arose from this Title VII violation. Pursuant to the exercise Phillips began working as an "overhead cleaner" for SMS on July 30, 1979. SMS provided cleaning, janitorial, and other miscellaneous services at a Monsanto plant in Marshall County, Alabama. Phillips was transferred between jobs of various descriptions, primarily on her request, to avoid sexually oriented discussions with male co-workers.

of pendent jurisdiction, the jury found that on one occasion Smalley had touched Phillips without her consent in an angry, hostile or offensive manner and awarded her $10 as nominal damages for common law battery. The jury also found that Smalley had wrongfully intruded into Phillips's private activities so as to cause outrage or mental suffering, shame, or humiliation to a person of ordinary sensibilities. Compensatory damages of $25,000 were awarded on this Alabama state law "invasion of privacy" claim.

At trial Phillips testified that within a few weeks of beginning her job, Smalley called her into his office and locked the door. He questioned her about how she was getting along with her husband and told her his wife was ill. The conversation ended when Phillips said she must return to work. A few days later he again called her into his office, locked the door, and this time inquired how often Phillips and her husband had sex and what "positions" they used. Phillips told Smalley it was none of his business and left the office. This form of intrusive interrogation continued two to three times a week. On repeated occasions, calling Phillips away from her work, into his office and locking the door, Smalley asked her whether she had ever engaged in oral sex.

At one time, he invited her to have a drink with him on a Saturday. She refused. In later conversations he insisted that she engage in oral sex with him on penalty of losing her job, upon which he knew she and her family were significantly financially dependent. She consistently resisted his advances. Shortly before the termination of her employment, he again called her into his office, showing anger toward her, beating on his desk, and insisted that she engage in oral sex with him at least three times a week. He then began to cover the window in the office door with paper to prohibit anyone from seeing inside. Phillips forced her way out of the office. As she was leaving, Smalley hit her "across the bottom" with the back of his hand. Phillips testified that this treatment made her nervous and unable to adequately perform her work.

On October 23, 1979, Smalley once more called Phillips into his office and asked her if she was going to show her gratitude to him for hiring her by engaging in certain sexual acts. She again refused. She testified that she was already upset by virtue of having learned the day before that she was possibly going to have surgery. After the incident with Smalley, Phillips said she "tried to work, and ... got so upset that [she] couldn't." She told her supervisor and Smalley that she was going home early. Smalley asked for her gate pass; she would not give it to him and said she was not quitting the job. The next day her gate pass would no longer work to admit her to the plant.

She then went to see a lawyer, returned to the plant, and talked by phone to Smalley, who brought her pay check. When she asked Smalley why she had been fired, he said she had not been fired but was "laid off," because the work for which she was hired was completed. Testifying at trial, Smalley made it clear that even if she were only "laid off" he had no intention of calling her back when more work was available. The distinction between "laying off" and "firing" in his mind was relevant only to the terminated employee's ability to collect unemployment benefits.

Evidence in the record indicates that all other persons hired at the same time and for the same job as Phillips, except one who voluntarily left, were kept on the payroll in various capacities until May, 1980, when the Monsanto plant closed. Other persons were hired soon after Phillips's termination for positions she was qualified to fill and for which she had indicated an interest. Smalley admitted at trial that Phillips was not The testimony of a family practice physician and of a psychiatrist was introduced at trial to the effect that Phillips experienced chronic anxiety in the months following her termination from SMS. She underwent treatment and was placed on medication. According to her husband, she had contemplated suicide and her relationships with family and friends were disrupted. In addition, she experienced physical problems, basically unrelated to her termination but resulting in surgery. The medical experts, expressing their expert opinion, testified that her anxiety was related to the events surrounding her termination and was not caused by her physical problems.

terminated because of poor work performance, but contended that her position had been designated temporary from the beginning and the work for which she was hired had been completed.


Since 1948, beginning with the case of Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948), Alabama has recognized the tort of "invasion of the right to privacy." See Liberty Loan Corporation of Gadsden v. Mizell, 410 So.2d 45 (Ala.1982); Hamilton v. South Central Bell Telephone Company, 369 So.2d 16 (Ala.1979).

It is generally accepted that the invasion of privacy tort consists of four distinct wrongs: 1) the intrusion upon the plaintiff's physical solitude or seclusion; 2 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (Ala.1961), citing W. Prosser, Law of Torts, pp. 637-39 (2d ed. 1955).

The Norris Court said:

"We think this analysis fundamentally consistent with our statement in the Doss case and reaffirmed in the Abernathy case, adopted from 41 Am.Jur. 925, that the right of privacy is ' "the right of a person to be free from unwarranted publicity," or "the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern or the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." ' [Emphasis added.]"

The parties concede that Plaintiff's action is premised upon that species of the privacy realm known as a "wrongful intrusion into one's private activities." Norris. Despite previous recognition and description of the "wrongful intrusion" to...

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