Yarbray v. Southern Bell Tel. & Tel. Co.

• Citation: 197 Ga.App. 846,399 S.E.2d 718
• Decision Date: 16 November 1990
• Docket Number: No. A90A1299,A90A1299
• Parties: YARBRAY v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.
• Court: United States Court of Appeals (Georgia)

Page 718

399 S.E.2d 718

197 Ga.App. 846

YARBRAY v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.

No. A90A1299.

Court of Appeals of Georgia.

Nov. 16, 1990.

Rehearing Denied Dec. 4, 1990.

Certiorari Granted Feb. 8, 1991.

Ford & Haley, James L. Ford, Atlanta, for appellant.

Jones, Day, Reavis & Pogue, John F. Wymer III, Atlanta, Deborah A. Sudbury, Snellville, for appellee.

McMURRAY, Presiding Judge.

Shirley Yarbray (plaintiff) brought an action against Southern Bell Telephone & Telegraph Company ("Southern Bell"), alleging invasion of privacy, intentional infliction of emotional distress and defamation. Southern Bell denied the material allegations of the complaint and moved for summary judgment. The evidence, construed in a light which most favorably supports plaintiff's claims ¹, reveals the following:

Plaintiff began working for Southern Bell in 1954. She was then 18 or 19 years-of-age. Over the years, plaintiff developed a good employment record and, by June of 1977, she was a middle-level manager, working in the Human Resources Department at Southern Bell. Plaintiff's duties included investigating and evaluating employment discrimination claims and administering guidelines for the selection of Southern Bell management personnel.

On March 11, 1988, plaintiff filed a federal age discrimination lawsuit against Southern Bell. On March 16, 1988, plaintiff was named as a potential witness in another age discrimination case filed in the United States District Court, Northern District of Georgia, against Southern Bell, Pilgrim v. Southern Bell Tel. etc. Co., Civil Action No. 1:87-CV-373-WCO. Shortly thereafter, plaintiff was questioned by a Southern Bell attorney, Audrey Polk, regarding plaintiff's knowledge of the Pilgrim age discrimination suit. Plaintiff informed Southern Bell's attorney, Ms. Polk, that she was not familiar with the case.

On March 23, 1988, plaintiff's supervisor (Dave Lane) informed her "that any information [plaintiff] had access to in the course of [her] job was considered proprietary and was not to be used in [plaintiff's employment discrimination case] or any other litigation." Plaintiff informed Mr. Lane that she had "not and did not intend to misuse any proprietary information." (Plaintiff later gave her attorney information regarding a Southern Bell early retirement plan, aimed at reducing "the average age of each of the management pay grades.")

On March 29, 1988, another Southern Bell attorney, Keith W. Kochler, informed plaintiff "that as a manager of the company [she] would be expected to represent Southern Bell if ... subpoenaed to court." Plaintiff responded that she would "tell the truth, and [attorney Kochler] said, I certainly hope that you will...." Plaintiff then "asked him to explain what he meant by represent the company, [but plaintiff] did not get an explanation back." Attorney Kochler simply restated, "that as a manager of Southern Bell you are expected to represent the company." Mr. Kochler also stated that "he hoped that this would not affect [plaintiff's] job...."

Plaintiff appeared as a witness at the Pilgrim trial and testified that she is responsible for processing "all of the management promotional/lateral movement packages, payroll changes ... for the company headquarters area"; that she handled almost 1,900 promotion/lateral movement packages in 1987 and that she does not "recall ever seeing an employee promoted from nonmanagement to management who was over 40, and definitely not over 50." (Emphasis supplied.) Plaintiff further testified that Southern Bell's employee qualification procedures are rarely followed; that the procedures only give the appearance of objectivity and that younger employees are more often selected for promotion than equally qualified older employees.

The Pilgrim case was settled after plaintiff's testimony. Later, Southern Bell's attorneys (Mr. Kochler and Ms. Polk) went to plaintiff's supervisor, Dave Lane, and discovered that plaintiff had approved six "over-40" promotions, from nonmanagement to management, during the year prior to the Pilgrim trial.

On June 14, 1988, Mr. Lane summoned plaintiff and another Southern Bell employee to his office. Mr. Lane then "advised [plaintiff] that because [she] had 'misrepresented the facts' on the witness stand in the Pilgrim case, and because [she] had given too much information, [plaintiff] would be transferred to the Network Department effective June 16, 1988." Mr. Lane also informed plaintiff that he thought there was a conflict of interest with plaintiff in her present position and that the new job would enable plaintiff to grow in another area. The transfer was later completed and plaintiff was given the same pay and the same benefits, but she was not exposed to employment related information at Southern Bell.

Plaintiff was not comfortable in her new position and plaintiff's supervisor, John Daughtridge, was not satisfied with her. Mr. Daughtridge openly criticized plaintiff, including her punctuality, her lack of team participation, her absenteeism, her lack of communication, her lack of accountability and her failure to work well with other employees. Mr. Daughtridge characterized plaintiff as argumentative and insubordinate and he attempted to recruit another employee to "prepare a statement about [plaintiff's] work performance and overall attitude." The employee refused because "she thought it was an unfair request." Mr. Daughtridge avoided contact with plaintiff and routinely failed to "acknowledge [plaintiff's] presence in the office." However, on September 13, 1988, Mr. Daughtridge abrasively criticized plaintiff, telling her "in a very loud voice that I do not want you here, I do not want you on my team...." The reprimand was so loud and harsh that another employee shut a door to buffer the oppressive tenor of the meeting.

The trial court granted Southern Bell's motion for summary judgment on all counts of the complaint. This appeal followed. Held:

1. In her first enumeration, plaintiff challenges the trial court's order granting Southern Bell's motion for summary judgment on her invasion of privacy claim.

(a) Plaintiff first contends the evidence of her March 1988 meetings with attorney Polk, supervisor Lane and attorney Kochler supports her invasion of privacy claim. More specifically, plaintiff contends that her "fundamental right [of privacy] was violated when Southern Bell attempted to use its position to coerce or intimidate her from testifying according to her own free will...."

Personal privacy rights are distilled from the concept of the " 'right to enjoy life--the right to be let alone ...' 4 [Harvard Law Review] 193." Macon-Bibb County Water, etc., Auth. v. Reynolds, 165 Ga.App. 348, 349(2), 350, 299 S.E.2d 594. However, " 'only the more flagrant breaches of decency and propriety [can sustain an action for invasion of privacy].' [4 Harvard Law Review 218.] To illustrate how restricted the right is and how outrageous and indecent its violation must be to give rise to a cause of action, ... the alleged violation must be tested on the basis of the innocence and good faith of the actor...." Davis v. Gen. Fin., etc., Corp., 80 Ga.App. 708, 710(4), 57 S.E.2d 225. In the case sub judice, nothing indecent or outrageous could possibly be inferred from the alleged March 1988 meetings between plaintiff and attorney Polk and supervisor Lane.

There is no evidence that attorney Polk or supervisor Lane threatened or coerced plaintiff in order to compel her to actually compromise testimony during the Pilgrim trial. On the contrary, the undisputed evidence shows that attorney Polk and supervisor Lane restricted their discussions with plaintiff to areas professionally and ethically germane to the parties' functions as Southern Bell employees, i.e., attorney Polk questioned plaintiff's "knowledge" of the Pilgrim case and supervisor Lane directed "that any information [plaintiff] had access to in the course of [her] employment was considered proprietary and was not to be used in [plaintiff's employment discrimination case] or any other litigation." However, the same conclusion cannot be drawn from evidence surrounding plaintiff's March 29, 1988, meeting with attorney Kochler.

Attorney Kochler allegedly informed plaintiff that she first had a duty of loyalty to Southern Bell if called as a witness in the Pilgrim case. He then told plaintiff that "he hoped that this would not affect [her] job...." In context, these comments could easily be construed as a threat in order to coerce favorable testimony for Southern Bell. Even worse, the comments could be interpreted as and taken as an attempt to suborn perjury. This court has already condemned such conduct in the wake of an invasion of privacy claim. Troy v. Interfinancial, 171 Ga.App. 763, 769(3), 320 S.E.2d 872. Nonetheless, outrageous conduct alone will not sustain an action for invasion of privacy. The effects of the malignant conduct upon a person of "ordinary sensibilities" under like or similar circumstances must also be considered.

"[T]he protection afforded by the law to the right of privacy must be restricted to 'ordinary sensibilities' and not to super-sensitiveness or agoraphobia. 41 Am.Jur. § 12, p. 934-5. There are some shocks, inconveniences and annoyances which members of society in the nature of...