French began employment with UPS in March 1984 as a track loader. During the next fourteen years he rose through the ranks to the position of Business Manager of the UPS facility in Chelmsford, Massachusetts. On August 17, 1996, after completing his shift, French invited three fellow UPS employees from the Chelmsford facility to attend a beer festival in Derry, New Hampshire. One of the invited employees, Tom Clark, was French's superior. The two other employees, Bari Boyce and Daniel DeButts were supervisory employees but lower in rank than French. Clark, DeButts and Boyce spent several hours at French's home where DeButts consumed alcoholic beverages and became intoxicated, "emotionally volatile and uncontrollable." Compl. 5. French let DeButts "dry out" in his garage. Id. While DeButts was alone in the garage, he lost control and "went into a violent rage, causing injury to himself." Id. 6. French, together with Clark and Boyce, 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 twenty-four hours.

Following the incident, French's supervisor, Clark, requested that French report it to his superiors at the Chelmsford facility. "Believing that the incident was none of UPS' business," French initially decided not to do so. Id. 8. Clark continued to press French, however, and on August 19, 1996, French informed four of the supervisors below him of the details of the incident. Two days later, French related the details of the incident to the division manager of operations, who was French's superior. French was put on leave pending an investigation of the incident. 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. "During these meetings the Plaintiff was peppered with questions, brow-beaten about the incident, and otherwise shamed and made to feel as if his life outside of work was important to his success and future with UPS." Id. 11. In addition, "UPS repeatedly contacted the mental health professionals who were treating French for depression to determine his condition and prognosis for recovery." Id. 12. On January 29, 1997, French was demoted to the position of supervisor. He returned to work for about five weeks, but then resigned because of the humiliation he felt in having to perform tasks which he had not been required to perform since the late 1980s. French subsequently brought this complaint, alleging four causes of action against UPS: invasion of privacy; reckless infliction of emotional distress; violation of the Massachusetts Civil Rights Act; and wrongful constructive discharge.

UPS has moved to dismiss all four counts of French's complaint. Dismissal under Fed.R. 12(b) (6) for failure to state a claim upon which relief may be granted is proper when it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997). French is required to set forth in his complaint direct or inferential factual allegations regarding each material element necessary to sustain recovery under some legal theory. Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989).

Count 1: Invasion of Privacy

The Massachusetts' right of privacy statute, Mass.Gen.L. ch. 214, 1B, provides that "A person shall have a right against unreasonable, substantial or serious interference *131 with his privacy." To constitute an invasion of privacy, the invasion must be both unreasonable and serious or substantial. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 567 N.E.2d 912, 914 (1991). 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. Compl. 17.

(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, 1B proscribes the "required disclosure of facts about an individual that are of a highly personal or intimate nature." Bratt v. International Business Machs. Corp., 392 Mass. 508, 467 N.E.2d 126, 133-34 (1984) (emphasis added). 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."[1] 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. Cort v. Bristol-Myers Co., 385 Mass. 300, 431 N.E.2d 908, 913-14 (1982). 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." Bratt, 467 N.E.2d at 135.[2] 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. See Cort, 431 N.E.2d at 914.

(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." Compl. *132 12. 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." Cort, 431 N.E.2d at 910. The Supreme Judicial Court has twice declined to decide whether the Privacy Act "reaches attempted interference with a person's privacy." See Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 630 N.E.2d 586, 589 n. 4 (1994); Bally v. Northeastern Univ., 403 Mass. 713, 532 N.E.2d 49, 53 n. 5 (1989). The court has suggested that the statute may not reach attempts. See Bally, 532 N.E.2d at 53 n. 5, comparing Mass.Gen.L. ch. 214, 1B (prohibiting interference with a right to privacy) with Mass.Gen.L. ch. 12, 11H (prohibiting interference and attempted interference with civil rights). Thus, Cort's 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 Frenchputting him on involuntary leave and then demoting himwere 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.

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