Recio v. Evers

• Decision Date: 28 August 2009
• Docket Number: No. S-07-1338.,S-07-1338.
• Citation: 771 N.W.2d 121,278 Neb. 405
• Parties: Roxana RECIO, appellant, v. Michelle EVERS, appellee.
• Court: Nebraska Supreme Court

771 N.W.2d 121

278 Neb. 405

Roxana RECIO, appellant, v. Michelle EVERS, appellee.

No. S-07-1338.

Supreme Court of Nebraska.

August 28, 2009.

Kevin J. McCoy, of Smith, Gardner, Slusky, Lazer, Pohren & Rogers, L.L.P., Omaha, for appellant.

Thomas F. Hoarty, Jr., of Byam & Hoarty, P.C., L.L.O., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Roxana Recio, a professor at Creighton University (Creighton), was placed on probation and required to attend counseling after Creighton's sexual harassment committee found merit in a sexual harassment complaint made by Recio's colleague, Michelle Evers. Recio sued Evers for tortious interference with a business relationship, but the district court entered summary judgment against Recio. The primary question presented by this appeal is whether there is a genuine issue of material fact as to whether Evers' sexual harassment complaint was justified. Based on the record presented, we find that Evers' sexual harassment complaint was justified because it provided truthful information to Creighton. Therefore, we affirm the judgment of the district court.

BACKGROUND

Recio was a tenured professor of Spanish in Creighton's department of modern languages and literatures (the Department). In February 2001, Evers accepted a position as a professor of Spanish in the Department, to begin in August 2001. Evers and Recio became acquainted during Evers' hiring process and began e-mailing one another. Recio's e-mails to Evers formed the basis of Evers' eventual complaint of sexual harassment. The messages were originally in Spanish or Catalan; Recio does not deny sending the messages, but the semantics of their translation and context are disputed. The following excerpts are taken from Evers' translations, because they are the only complete translations that are in the record. Any relevant disputes over translation are noted. And because of the informal style of these messages, there are various grammar, spelling, and syntax errors. Indicating each error with a "[sic]" would be distracting, so we reproduce each of the translated messages in its original form. Because they are essential to resolving this appeal, they are quoted at some length.

RECIO'S E-MAILS

The first message at issue, sent by Recio to Evers on April 16, 2001, mostly discussed the work of a particular Catalan poet who was apparently of academic interest to them. Recio also discussed her summer travel plans, however, and promised to send postcards from each of her stops. Recio wrote, "I'll write you from everywhere and you don't have to answer my postcards, of course, what I would like though would be to receive a letter from you sometime, short, but at least send me one." Recio also wrote that she would help Evers prepare articles for publication.

I would like you to publish, if you want, of course, I don't want to stick myself in your life ... but I do want to be your friend, do you understand? I hope so, because if you don't understand, you will end up hating me and I will have an attack. If I don't see you in August as we were saying this morning ... UFFF! ... I think I would shoot myself in the head (think that I'm bad off in the head if you want, I don't care, but I will shoot myself).

(Emphasis in original.) Recio claims that "I don't want to stick myself in your life" is a literal translation, but that the verb would have been better translated as "`to meddle, intrude, interfere.'"

A message sent the following day was still discussing the same poet, but was more personal. Recio wrote:

The truth is, I really feel like talking to you and I don't know if I'll have time and if I'll be able to tell you all that I want.... The most important thing is to communicate and I am happy with your e-mails in any case. Of course, I haven't erased your voice from my answering machine. It makes me happy and I love it. I'll leave it there a few days. I just feel like it. I'm trying hard not to call you ... but I won't do it because I don't want to take advantage of you. I was thrilled to talk to you yesterday. You already know that I don't have to tell you what I feel because you know quite well and also I am always repeating to you like a parrot.

Recio contends that "Of course" should have been translated "`[B]y the way'" and that "It makes me happy and I love it" should have been translated "`I find it funny and I like it.'" Recio claims that "I was thrilled to talk to you" would have been more accurately translated as "I enjoyed talking to you" or "I loved to talk to you." Recio also contends that "You already know that I don't have to tell you what I feel" actually contained a reference to the previous sentence, so the idea was "`[Y]ou already know that I loved to talk with you.'"

Recio's message went on to say that she had told her husband she wanted to take Evers to a particular restaurant in Spain and that "[h]e doesn't mind, he says it's fine." Recio wrote, "Let's see if we can go someday (you can bring whomever you want, but I want to bring you)." Recio also commented more on a particular poet and wrote, "I love that you're reading him and that you stay up late reading it. How great, I figured out what you like! Could you keep telling me what you like to read? I want to share with you." Recio again asked Evers to write her, and promised, "I'll send you all the e-mails that I can. You'll get tired of it, I won't. For me, you are very important." Recio concluded, "Hey, I miss you (I won't ever tell you that again, I promise). Write me when you can, okay? Don't forget. I hope the summer goes by fast (to be able to see you once and for all!)."

Another, shorter message was sent later the same day. Recio, who is a Cuban exile, asked Evers if she was "Pro-Castro." Recio asked:

Do you believe all that propaganda? It would hurt me but I would still have the same caring feelings for you. The truth is, I already care so much for you that I don't know what I would say. It would be terribly hard to discuss with you. I'll tell you seriously, you are in charge. I am at your feet, I am not a man ... (that last part is a joke)[.]

Recio concluded by promising to write later, and she did so that evening. Recio wrote:

I just called you and it surprised me that you had already read the message I sent you. But I liked that you told me that you aren't Pro-Castro, it wouldn't have mattered, but I feel much better, I confess. To tell you the truth, it would have been painful for me but I wouldn't have discussed it with you. Of course I discuss it but with you it wouldn't have made a difference. Okay, but the thing is, it was funny the way you proclaimed it. You know what I am discovering? I think that you like to laugh, you like good humor, you have a spark when you talk etc. but behind it all there is an intelligent and sensitive woman, very intelligent and sensitive and I want to discover more. Has it ever occurred to you that it is hard to meet a guy not because you are pushy, like you say, but rather for your intelligence and sensitivity? I don't know, I think that could be it.

Recio says that "you have a spark" actually means "'[you are] witty and sharp.'" Recio's message continues:

What I am missing is the directions. Look: I write you and later, if you would like, you write me, those things that they call "traditional" letters. What do you think? I only ask that if I write you four, you write me one, nothing more. It's that in Barcelona I'll see my e-mail two or three times a week, but in Sitges maybe once, and that's even going to be hard because I'm going to miss you (I'm not going to keep saying it, honestly). You don't understand because you see me like some nice person who tortures you with e-mails and who you will work with, you are kind, polite, etc but for me it is different, Michelle, I feel so much for you, don't you notice? Don't you see that I talk to you not just to pass the time, but rather because it makes me happy? That's how it is, and of course, I will miss you and the other type of mail will help me to be near you even if you don't answer me. It's something caring, affectionate that doesn't have to do with anything else. What's more, when you say things like what you said about [a particular writer], I find it interesting to talk to you. I'm going to save your message. I have to read it better. Okay, so that you have to wait a little I'll send the addresses from there, that way, you don't have to worry about saving them or anything. Let's see if some day you have half of the affection that I feel for you. Let's see. I doubt it but oh well. Today people are just plain savage (that's a joke)[.]

Recio says that the translated words "I feel so much for you" are too strong and should have been translated as "`I have developed some affection for you'" and that the phrase "it makes me happy" actually meant "`I feel comfortable.'"

Recio continued the message by writing:

In reference to Spain I love what you say: it's true, we'll coincide there sometime and it will be great. Sometimes I'm afraid that if you would come you would be disappointed. We'll do everything possible for that not to happen. But it's true: there is a lot of life to live and good times to be had and above all: introduce you to Juan who will just faint when he sees you[.]

Recio asked Evers to "[t]ell me what books you want me to bring you and tell me what I can do to not miss you so much." Recio concluded by describing how she had told a friend about Evers, explaining:

I want her to help me (and everyone else too) to not miss this wonderful girl who knows tons of stuff and who writes and thinks like few people do ... I've never missed Omaha or the U.S., this time, I will. You see and you're telling me that I'm going to have a great time. I'll have a good time but you know, you won't be there. I told you that I'm obsessive (but don't freak out, I'm not like Jeffrey...