Question: French v. United Parcel Service, Inc. 2 F. Supp. 2d 128 (D. Mass. 1998)

French began employment with UPS in March 1984. During the next 14 years, he rose through the ranks to become Business Manager of a UPS facility. One night after completing his shift, French invited three fellow UPS employees from the facility to attend a beer festival. One of the employees, DeButts, was a supervisory employee, but lower in rank than French. While at French's home, DeButts became intoxicated, emotionally volatile, and uncontrollable. When he was left alone in French's garage to "dry out," he lost control, went into a violent rage and caused injury to himself. French and the two other employees found DeButts lying in the garage bleeding. An ambulance was called and DeButts was taken to a local hospital where he was treated and released after 24 hours. Following the incident, French's supervisor, Clark, requested that French report it to his superiors at the facility. Believing that the incident was none of UPS's business, French initially decided not to do so. Clark continued to press French, and later French informed the division manager of operations, his superior, of the incident. French was put on leave pending an investigation.

As a result of this suspension, French began treatment for depression. During the next several months while French was still on leave, UPS personnel demanded that French meet with them to discuss the incident. In addition, UPS repeatedly contacted the mental health professionals who were treating French for depression to determine his condition and prognosis for recovery. At the end of the month, French was demoted to the position of supervisor. He returned to work but resigned about five weeks later because of the humiliation he felt in having to perform tasks that had not been his responsibility since the late 1980s. French brought this complaint, alleging four causes of action against UPS: invasion of privacy; reckless infliction of emotional distress; a violation of the Massachusetts Civil Rights Act; and wrongful constructive discharge. UPS moved to dismiss all four counts of French's complaint. The excerpt of the case provided below addresses only the invasion of privacy claims relevant to this chapter.

O'Toole, J.

Count I: Invasion of Privacy

The Massachusetts right of privacy statute provides that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy." To constitute an invasion of privacy, the invasion must be both unreasonable and serious or substantial. French alleges that UPS violated his right to privacy by: (a) insisting that he disclose details concerning an incident that occurred during off-work hours at his home; (b) repeatedly contacting his mental health providers without his consent; and (c) penalizing him, in the form of involuntary leave and demotion, for the incident. (A) Requiring Disclosure about the Incident For purposes of the Massachusetts Privacy Act, "private" facts are not necessarily simply those that are "not public," that is, not generally or widely known. Rather, [the Act] proscribes the "required disclosure of facts about an individual that are of a highly personal or intimate nature." The fact that a fellow employee drank too much at French's house is not a fact about French that is "highly personal or intimate." More importantly, the facts of what happened in the incident were not information that was "private" to French. Three other UPS employees took part in and observed the events, one of whom, Clark, was French's superior in the company hierarchy.

Any of these persons was free to describe the incident; none had any apparent relationship with French that imposed some obligation of confidentiality. Indeed, as French's superior, Clark may even have owed UPS a duty to report, sua sponte, what he had observed. Be that as it may, it is surely unlikely that the Massachusetts courts would interpret § 1B to give French a right to prohibit Clark (or any one else who was present, including DeButts) from voluntarily disclosing what he had personally observed or done in connection with the incident. In short, the incident was simply not a "private" affair of French alone. In addition, there are circumstances in which it is legitimate for an employer to know some "personal" information about its employees, so long as the information reasonably bears upon the employees' fitness for, or discharge of, their employment responsibilities. In the employment context "the employer's legitimate interest in determining the employees' effectiveness in their jobs [is] balanced against the seriousness of the intrusion on the employees' privacy."

UPS has articulated legitimate business reasons for seeking information about the DeButts incident, including concerns about the soundness of judgment exercised by its supervisory employees in regard to alcohol abuse generally as well as in a particular setting where all participants were UPS employees. In light of these legitimate concerns, the company's questioning him about facts known to several other employees amounted, at most, to a de minimis intrusion into French's privacy, not actionable under the statute. (B) Attempted Contact of Mental Health Care Providers French also alleges that UPS "repeatedly contacted the mental health professionals who were treating the Plaintiff to determine his condition and prognosis for recovery. UPS made these contacts without the prior consent of the Plaintiff." The complaint does not allege that any private information was actually obtained by UPS. "Whatever unlawful invasion of privacy might have arisen if the defendant[ ] had obtained some of the information sought . . . , the short answer is that . . . [t]he defendant['s] attempted invasion of privacy . . . failed."

The Supreme Judicial Court has twice declined to decide whether the Privacy Act "reaches attempted interference with a person's privacy." The court has suggested that the statute may not reach attempts. Thus, [prior court rulings'] rejection of the "failed" invasion as a basis for liability apparently continues to express the law of Massachusetts on this question. (C) Suspension and Demotion The employment actions UPS took against French- putting him on involuntary leave and then demoting him-were not themselves an invasion of his privacy within the scope of the statutory cause of action. If these actions were wrongful, it would have to have been for some other reason. Therefore, French's claim for invasion of privacy must be DISMISSED.

1. Do you agree with the court's decision? Why or why not?

2. Why do you think the court determined the employer had a right to inquire about the incident that occurred off-duty?

3. Why do you think UPS was so concerned about an incident that occurred off-duty?