Invasion of Privacy, Emotional Distress and Misrepresentation Claims Dismissed

In Fitzgerald v. Hickman County Government, No. M2017-00565-COA-R3-CV (Tenn. Ct. App. April 4, 2018), plaintiff brought several claims against the county and the county mayor related to his employment termination. The trial court dismissed all claims after defendants filed a motion to dismiss, and the Court of Appeals affirmed the dismissal of all claims except plaintiff’s claim for false light invasion of privacy.

The basic facts of this case were that plaintiff had worked for the county for over fifteen years, and that the mayor fired him citing “bogus complaints.” When plaintiff attempted to use the grievance procedure, he was sent a letter from the mayor stating that his “grievance claim had been denied.” In addition, plaintiff claimed that at the time of his firing, the mayor promised to create a new job for him, but such a job never came to fruition because the county commission “determined that it could not afford to fund the new position.” Plaintiff also claimed that the mayor had made public statements regarding an alleged extramarital affair and regarding plaintiff receiving “certain compensation in his final payment” as an employee.

On appeal, the Court first looked at which claims should have been dismissed based on immunity under the GTLA. The Court affirmed the finding that Hickman County, a governmental entity, was immune from suit for intentional infliction of emotional distress, invasion of privacy, and negligent and intentional misrepresentation. The Court of Appeals found that Hickman County was not immune, however, for plaintiff’s claim of workplace harassment.

Next, the Court looked at the claims made against defendant mayor individually, including tort claims for invasion of privacy and misrepresentation. Regarding plaintiff’s claim for invasion of privacy based on intrusion on seclusion, the Court noted that a plaintiff advancing such a claim must show that “that the information sought by the opposing party was not properly discoverable or was otherwise subject to some form of privilege.” In this case, the information that plaintiff was basing his claim upon was a communication between plaintiff’s attorney and the county attorney. Because this information was between plaintiff’s attorney and a third party, attorney-client privilege was not applicable. The Court held that “[b]ecause [plaintiff] fails to establish another privilege or reason that information communicated to a county attorney by his attorney could not be communicated to county officials, we affirm the trial court’s decision that [plaintiff] …failed to establish a prima facie case for invasion of privacy based upon intrusion on seclusion.”

The Court next analyzed plaintiff’s false light invasion of privacy claim. Plaintiff alleged that defendant mayor made statements that asserted that plaintiff “had inappropriately taken a lot of money out the door by allegedly claiming compensatory time during his employ…and on [his] final paycheck.” Plaintiff argued that although the mayor “said publicly he wasn’t accusing anyone of anything, it was clear he insinuated [plaintiff] engaged in inappropriate behavior tantamount to theft from the County.” The elements for a false light claim are that “the false light in which the other was placed would be highly offensive to a reasonable person,” and that the defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” (internal citation omitted). Further, since this case dealt with a matter of public concern, plaintiff would also need to show actual malice.

Defendant argued that the false light claim was correctly dismissed because what he said was true, but the Court noted that “literal truth is not a defense in a false light claim.” (internal citation omitted). Defendant also argued that dismissal was correct because plaintiff “failed to establish that [the mayor] acted knowingly and recklessly when making” the statements to the commission, but the Court pointed out that the elements only required that “the tortfeasor had knowledge of or acted in reckless disregard as to the false impression created by his statement.” (internal citation omitted). Here, plaintiff’s complaint asserted that the mayor made statements insinuating that plaintiff “improperly appropriated money” from the county, and that the mayor’s actions were “malicious and willful.” Taking the complaint as true at the motion to dismiss stage, the Court of Appeals held that dismissal of the false light claim was error, and thus reversed the trial court on this point.

Third, the Court examined dismissal of plaintiff’s intentional infliction of emotional distress claim. Such a claim requires a plaintiff to show that “the defendant’s conduct was so outrageous that it is not tolerated by civilized society.” (internal citation omitted). “[M]ere insults, indignities, threats, annoyances, petty oppression or other trivialities” are not enough to support an intentional infliction of emotional distress claim. In this case, the Court of Appeals agreed with the trial court that the allegations regarding plaintiff’s employment termination did not describe outrageous conduct as required by this tort, and dismissal was affirmed.

Fourth, the Court affirmed dismissal of plaintiff’s workplace harassment claim against the county. A workplace harassment claim requires a plaintiff to show “negligence by the governmental entity in supervision of one of its employees acting within the scope of employment.” (internal citation omitted). Because plaintiff’s complaint failed to allege direct negligence on the part of the county and contained no allegations that the county “had the authority but failed to supervise” the mayor, dismissal was affirmed.

Finally, the Court looked at plaintiff’s claims for intentional and/or negligent misrepresentation based on the mayor’s alleged promise to create a new job for plaintiff and subsequent failure to do so. The Court noted that a misrepresentation must be based on “a statement of an existing or past material fact.” (internal citation omitted). The mayor’s statements about creating a job for plaintiff, however, were about his “intention to take future action,” which do not support a misrepresentation claim. Further, according to plaintiff’s own allegations, the mayor did attempt to create the job by presenting the request to the council, but the council rejected the proposal.

Plaintiff also asserted that allegedly false statements made by the mayor about plaintiff engaging in an affair fell under the tort of intentional misrepresentation. A misrepresentation claim, however, requires a plaintiff to show that he or she relied on the misrepresentation, and the Court held that plaintiff could not show that he relied on a statement about an affair he said he never had. Dismissal of the misrepresentation claims was accordingly affirmed.

This case is a good lesson in making sure that the allegations in your complaint are written with the elements of your claims in mind. Here, all but one of plaintiff’s claims were dismissed at the motion to dismiss stage based solely on the pleadings.