United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

Nos. 99-4082/4083

___________

Linda Fletcher, *

*

Appellant/Cross-Appellee, * Appeals from the United States

* District Court for the

v. * Eastern District of Arkansas

*

Price Chopper Foods of Trumann, Inc., * [PUBLISHED]

*

Appellee/Cross-Appellant *

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Submitted: June 12, 2000

Filed: August 9, 2000

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Before WOLLMAN, Chief Judge, McMILLIAN, and BYE, Circuit Judges.

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BYE, Circuit Judge.

A jury found that Price Chopper Foods of Trumann, Inc. (PCF) intruded upon

the seclusion of its former employee, Linda Fletcher. The jury awarded Fletcher both

compensatory and punitive damages. After trial, PCF sought judgment as a matter of

law as to both the underlying tort claim and the award of punitive damages. The

district court denied PCF’s motion for judgment on the tort claim, but granted the

motion as to the punitive damages award. PCF appeals the denial of its motion for

judgment on the tort claim; Fletcher appeals the district court’s dismissal of her punitive

damages award. We reverse in part and affirm in part.
1Although she completed the accident report form, Fletcher never made a claim

under the workers’ compensation laws.

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FACTUAL BACKGROUND

Because Fletcher prevailed at trial, we view the factual record in the light most

favorable to her. We also give Fletcher the benefit of all reasonable inferences from

the trial record. See White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992) (citing Dace

v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir. 1983)).

PCF operates a grocery store in Trumann, Arkansas. Fletcher began work for

PCF as a deli cook in June 1993. In May 1995, Fletcher was diagnosed with diabetes.

By August 1996, Fletcher’s diabetic condition had deteriorated to the point that her left

leg had to be amputated below the knee. At that time, Fletcher ceased working for PCF

and rehabilitated her leg.

In March 1997, Fletcher returned to work in the same position at PCF. But in

July 1997, Fletcher developed a diabetic ulcer in her right foot. Fletcher’s foot ulcer

required treatment and dressing at a hospital three times per week. On September 29,

1997, Fletcher spilled hot gravy on her right foot — the foot suffering from the diabetic

ulcer. A co-worker assisted Fletcher in removing her sock and placed burn cream on

the exposed portion of her foot. As part of company policy, Fletcher then completed

and signed an Arkansas Workers’ Compensation form.1 That form contained an

authorization that permitted the release of Fletcher’s medical information.

In early October 1997, Fletcher learned that her right foot had developed a staph

infection. Fletcher immediately informed two coworkers of her condition; coworkers

eventually conveyed the information to the local store manager. PCF’s corporate

manager, Marlene Sawyer, testified that she decided to terminate Fletcher’s

employment that evening because Arkansas health regulations forbid persons infected
2See Ark. Dept. of Health Regs., Food Serv. Establishments § 3-101 (effective

Oct. 28, 1993). Although the regulations promulgated by the Department have the

force of law, see Ark. Code Ann. § 20-7-109(a)(1) (Michie 2000), the regulations are

not formally published.

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with a communicable disease (such as staph) from working in the food preparation

industry.2 Sawyer also admitted, however, that she viewed Fletcher as an “insurance

risk” due to Fletcher’s prosthetic limb and decreased mobility.

Following her termination, Fletcher applied for state unemployment benefits in

Arkansas. In her application, Fletcher claimed that she did not have a staph infection

at the time PCF terminated her employment. When Sawyer learned of Fletcher’s claim

that she had not been infected with staph, Sawyer decided to resolve the inconsistency

in Fletcher’s story.

Sawyer contacted Fletcher’s doctor to ascertain whether Fletcher in fact had a

staph infection. Sawyer spoke to Nurse Flemon, who informed Sawyer that such

information could not be conveyed without a medical authorization form. According

to Flemon, Sawyer responded that PCF employees sign medical information waivers

when they begin work at PCF. Sawyer agreed to fax to the doctor’s office a copy of

Fletcher’s authorization. Sawyer proceeded to fax a copy of Fletcher’s workers’

compensation form that contained a medical authorization. Sawyer also informed

Nurse Flemon that, on one occasion, Fletcher had removed the bandage from her foot

during work. Flemon interpreted Sawyer’s remarks to mean that Fletcher had exposed

her infection to the air, an act proscribed by Fletcher’s doctor. Based on this

information, Fletcher’s doctor wrote to Sawyer informing her that Fletcher was indeed

infected with the staph virus. The doctor reiterated that Fletcher should not remove her

bandages.
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In portions of Sawyer’s deposition read at trial, Sawyer acknowledged that she

did not really need to know whether Fletcher had a staph infection. She stated simply

that she wanted to “soothe the fears” of the “other ladies in the store.” But on crossexamination, Sawyer added to her explanation, claiming that she needed to know

whether Fletcher was infected with staph in order to determine whether Fletcher could

return to work in the PCF deli.

PROCEDURAL HISTORY

On December 16, 1998, Fletcher filed a complaint against PCF alleging

discrimination on the basis of disability under the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101-12213. On September 8, 1999, the district court

permitted Fletcher to amend her complaint to add two state-law tort claims, invasion

of privacy and outrage. On October 5, 1999, the court granted PCF’s motion for

summary judgment on the outrage claim, but denied the motion as to Fletcher’s ADA

claim. The court declined to rule on the invasion of privacy claim at that juncture.

The parties tried the ADA and invasion of privacy claims to a jury on October

6-7, 1999. At the close of Fletcher’s case-in-chief, PCF moved for judgment as a

matter of law, which the district court denied. The jury ultimately found PCF liable on

the state-law invasion of privacy claim, but not liable on the ADA claim. The jury

awarded Fletcher $5,000 in compensatory damages and $50,000 in punitive damages.

After trial, PCF renewed its motion for judgment as a matter of law as to both the

punitive damages award and the invasion of privacy claim. On October 13, 1999, the

court granted the motion as to the punitive damages component, but denied the motion

as to the underlying claim of invasion of privacy.

Fletcher timely appealed the dismissal of her punitive damages award; PCF

timely cross-appealed the denial of its motion for judgment as a matter of law on the

invasion of privacy claim.
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DISCUSSION

A party who moves for judgment as a matter of law before the case is submitted

to the jury may later “renew its request for judgment as a matter of law by filing a

motion no later than 10 days after entry of judgment.” Fed. R. Civ. P. 50(b). The trial

court then has discretion to grant or deny the motion, or order a new trial. See Fed. R.

Civ. P. 50(b)(1)(A)-(C).

We review de novo both grants and denials of motions for judgment as a matter

of law using the same standard as the district court. See Welfl v. Northland Ins. Co.,

192 F.3d 1169, 1172 (8th Cir. 1999) (grant); McKnight v. Johnson Controls, Inc., 36

F.3d 1396, 1400 (8th Cir. 1994) (denial). We must ascertain “whether there is

sufficient evidence to support a jury verdict. The panel must analyze the evidence in

the light most favorable to the prevailing party and must not engage in a weighing or

evaluation of the evidence or consider questions of credibility.” White, 961 F.2d at 779

(citation omitted). In sum, we review the district court’s decision to grant or deny

judgment as a matter of law with great deference to the jury’s verdict. See Mears v.

Nationwide Mut. Ins. Co., 91 F.3d 1118, 1121 (8th Cir. 1996).

A. Invasion of Privacy

Arkansas first recognized the tort of invasion of privacy in Olan Mills, Inc. v.

Dodd, 353 S.W.2d 22 (Ark. 1962), and Dodrill v. Arkansas Democrat Co., 590 S.W.2d

840 (Ark. 1979). In Dodrill, the Arkansas Supreme Court adopted the approach set

forth in the Restatement (Second) of Torts, which delineates four separate torts grouped

under the rubric “invasion of privacy”:

(1) unreasonable intrusion upon the seclusion of another;

(2) appropriation of the other’s name or likeness;

(3) unreasonable publicity given to the other’s private life; and
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(4) publicity that unreasonably places the other in a false light before the

public.

See Dodrill, 590 S.W.2d at 844.

Fletcher proceeded under the first of these torts, intrusion upon seclusion.

Although the Arkansas courts have seldom adjudicated intrusion upon seclusion claims,

their analysis of this particular privacy tort would likely follow the Restatement’s

discussion. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 742 (8th Cir. 1999). The

Restatement defines liability for intrusion upon seclusion as follows:

One who intentionally intrudes, physically or otherwise, upon the

solicitude or seclusion of another or his private affairs or concerns, is

subject to liability to the other for invasion of his privacy, if the intrusion

would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652B (1977).

The tort consists simply of three parts: (1) an intrusion (2) that is highly offensive

(3) into some matter in which a person has a legitimate expectation of privacy. See,

e.g., Williams v. American Broad. Cos., Inc., 96 F.R.D. 658, 669 (W.D. Ark. 1983)

(applying Arkansas law) (“This tort requires actions on the defendant’s part in the

nature of prying or intrusion which is offensive or objectionable to a reasonable person.

The ‘thing’ into which there is intrusion or prying must be, and be entitled to be,

private.”).

1. Intrusion

An intrusion occurs when an actor “believes, or is substantially certain, that he

lacks the necessary legal or personal permission to commit the intrusive act.”

O’Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir. 1989) (applying § 652B of
3PCF did not cite (and we could not locate) any Arkansas authority to support

this remarkably broad proposition.

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the Restatement per Pennsylvania law). The trial record leaves little doubt that Sawyer

intruded.

Sawyer used a medical authorization from a workers’ compensation form to gain

information about Fletcher’s staph infection. Yet Fletcher never sought workers’

compensation benefits; indeed, at the time of Sawyer’s inquiry, Fletcher pursued a

claim for unemployment benefits, not workers’ compensation. PCF’s contention that

the workers’ compensation medical authorization was “good for all purposes” strains

credulity.3

Furthermore, the jury could have found (and likely did find) that Sawyer

misrepresented to Nurse Flemon the nature of Fletcher’s behavior at work. Nurse

Flemon recalled during her testimony that Sawyer told her Fletcher had removed a

bandage from her foot ulcer in violation of her doctor’s orders. Yet the testimony about

Fletcher’s behavior on the day she spilled gravy on her foot was equivocal at best. The

jury could easily have determined that Fletcher did not remove her bandage, since

Fletcher so testified. Sawyer’s conduct was intrusive.

2. Highly offensive

Fletcher introduced evidence that Sawyer obtained information about her staph

infection by subterfuge. Fletcher equates subterfuge with “highly offensive” conduct.

In interpreting § 652B of the Restatement, the Kansas Supreme Court has held that

unauthorized release of medical information does not constitute highly offensive

conduct when that information could otherwise have been obtained by proper means.

See Werner v. Kliewer, 710 P.2d 1250, 1255-56 (Kan. 1985).
4Although the regulations promulgated by the Arkansas Employment Security

Division have the force of law, see Ark. Code Ann. § 11-10-521(a) (Michie 1996), the

regulations are not formally published. We therefore refer to the Division’s internet

website for the text of these regulations.

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In Werner, a husband urged his wife’s physician to send a letter to the trial court

disclosing the wife’s suicidal attempts and behavior in the midst of divorce and child

custody proceedings. The wife sued her physician for intrusion upon seclusion because

the physician wrote the letter without her consent. The Kansas Supreme Court upheld

a grant of summary judgment in favor of the physician on the intrusion claim, holding

that “there is nothing in the letter which was not already known by her husband. . . .

although it would have been preferable to have followed standard court and discovery

procedures, the information revealed, under the circumstances of this case, certainly

does not rise to the level of being highly offensive to a reasonable person.” Id.

Like the husband and physician in Werner, Sawyer could have employed proper

means to discover whether Fletcher actually had a staph infection at the time of her

discharge. During her rebuttal argument, Fletcher’s counsel conceded that PCF could

have obtained a subpoena for the doctor’s testimony during Fletcher’s unemployment

benefits application process. That concession comports with our understanding of

Arkansas unemployment benefits law: PCF would have had an opportunity (perhaps

even a duty) to subpoena Fletcher’s doctor. See, e.g., Sanyo Manufac. Corp. v. Stiles,

702 S.W.2d 421, 423 (Ark. Ct. App. 1986) (recognizing an employer’s right to request

subpoenas of employees’ doctors to determine whether employees were medically

restricted from working); see also Ark. Employ. Sec. Reg. 15(A) (last visited June 28,

2000) <www.state.ar.us/esd/reg15.html>4 (“Two [2] copies of the notice of an initial

or additional claim filed [by claimant] shall be mailed . . . to . . . his last employer. This

notice shall request that the employer immediately furnish pertinent information to the

Employment Security Division.”) (emphasis added).
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Because Sawyer might have availed herself of proper discovery means — even

though she did not — we conclude as a matter of law that Sawyer’s conduct was not

highly offensive. See Werner, 710 P.2d at 1255-56. Fletcher urges a contrary

conclusion and refers us to an illustration in § 652B. Illustration 4 prescribes liability

for one who procures evidence to use in a civil suit by forging a court document to

obtain confidential bank records of his adversary. See Restatement (Second) of Torts

§ 652B, cmt. b, illus. 4 (1977). Illustration 4 does not foreclose our decision, however,

because the felonious conduct of the actor in the hypothetical is qualitatively different

from Sawyer’s conduct. While we readily acknowledge that Sawyer’s conduct was

morally reproachable, her conduct does not rise to the level of forgery, a felony. Hence

Sawyer’s decision to bypass proper channels in obtaining information from Fletcher’s

doctor does not bring her conduct within the ambit of Illustration 4.

Fletcher therefore failed to adduce sufficient evidence at trial to permit a jury to

conclude that Sawyer intruded in a highly offensive manner.

3. Expectation of Privacy

We also find that Fletcher failed to establish the third element of her intrusion

claim — privacy. At trial, Fletcher asserted a privacy interest in the medical fact that

she was infected with the staph virus at the time of her termination. PCF acknowledges

that, as a general matter, an individual’s medical records are private. But PCF contends

that Fletcher’s behavior, coupled with the circumstances surrounding her termination,

failed to demonstrate an intent to maintain privacy in the information.

A legitimate expectation of privacy is the touchstone of the tort of intrusion upon

seclusion. “[T]he plaintiff in an invasion of privacy case must have conducted himself

or herself in a manner consistent with an actual expectation of privacy.” Hill v.

National Collegiate Athletic Ass’n, 865 P.2d 633, 648 (Cal. 1994). In Hill, studentathletes at Stanford University sued the National Collegiate Athletic Association
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(NCAA) under the privacy clause of the California Constitution to enjoin the NCAA

from conducting random drug tests. Although the plaintiffs did not plead a cause of

action for intrusion upon seclusion, the California Supreme Court looked to the four

common law invasion of privacy torts for guidance in interpreting the scope of the state

constitutional privacy guarantee. After concluding that the invasion of privacy torts

promised significant protection to individuals, the Court discerned “several important

limiting principles that have prevented [the common law rights of privacy from]

becoming an all-encompassing and always litigable assertion of individual right.” Id.

at 647-48. Chief among these “limiting principles” is the notion that a person’s

behavior may give rise to an inference that he no longer expects to maintain privacy in

some aspect of his affairs. See id. at 648. Fletcher’s case implicates this notion.

Fletcher’s behavior did not indicate that she intended to keep knowledge of her

staph infection private. When Fletcher learned that she had a staph infection, she

informed two coworkers of her condition. Fletcher’s revelation of private information

to coworkers eliminated Fletcher’s expectation of privacy by making what was

formerly private a topic of office conversation. See Moffett v. Gene B. Glick Co., Inc.,

621 F. Supp. 244, 283 (N.D. Ind. 1985) (applying § 652B of the Restatement per

Indiana law).

InMoffett, a white female suffered repeated sexual and racial taunts from several

coworkers because she dated a black man. Moffett’s supervisor also removed items

from her desk and attempted to eavesdrop on her conversations with her boyfriend.

The court acknowledged that Moffett’s coworkers and supervisor intentionally

interfered with her personal affairs. Yet the court dismissed Moffett’s intrusion claim

because she failed to demonstrate adequate “seclusion.” Moffett admitted that she had

discussed her interracial relationship with her coworkers. The court found that “[b]y

discussing that relationship in the office environment, [Moffett] cannot now claim some

kind of solitude or seclusion for the relationship in that environment.” Id. at 283.
5Sawyer also told Fletcher that she was an “insurance risk” due to her prosthetic

limb and decreased mobility. Poor mobility apparently posed a considerable risk

because the PCF deli contained some broken or poorly-maintained equipment. We

acknowledge that the jury could reasonably have concluded that Sawyer fired Fletcher

for these reasons, not because of the staph infection. Even viewing the record in

Fletcher’s favor, however, Sawyer knew of Fletcher’s staph infection at the time of

Fletcher’s termination. Sawyer’s knowledge is the critical issue in assessing Fletcher’s

expectation of privacy.

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Moffett suggests that even extraordinarily offensive conduct may not be

redressed via the tort of intrusion upon seclusion unless a plaintiff demonstrates a

legitimate expectation of privacy. Much like the plaintiff in Moffett, Fletcher lost her

expectation of privacy when she shared knowledge of her staph infection with

coworkers. 

The timing of Fletcher’s disclosure to her fellow coworkers also suggests she did

not intend to keep the knowledge of her staph infection to herself. Fletcher testified

that the first thing she did upon learning that she was infected was to inform her

coworkers. One who seeks to maintain privacy in a newly-discovered piece of

information does not immediately reveal that information to others. Fletcher’s actions

do not indicate a subjective expectation of privacy.

The testimony at trial also revealed that Sawyer knew of Fletcher’s staph

infection before she contacted Nurse Flemon for confirmation. After Fletcher informed

her coworkers of her condition in early October 1997, news of Fletcher’s malady

spread. By the end of the day, both Fletcher’s immediate supervisor (on-site at PCF)

and Sawyer (a corporate manager in another town) knew that Fletcher had been

diagnosed with a staph infection. In her testimony, Fletcher acknowledged that her

staph infection was one reason why Sawyer decided to terminate her employment.5

The proverbial cat had escaped from the bag long before Sawyer contacted Fletcher’s

doctor. Viewed objectively, then, Fletcher’s expectation of privacy was unreasonable.
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More fundamentally, Fletcher’s staph infection significantly impacted her fitness

to work at PCF. Employees infected with communicable diseases may not, as a general

matter, work in the food service industry. Cf. 42 U.S.C. § 12113(d)(2) (providing that

a food-industry employer may refuse to employ an individual with an infectious or

communicable disease without violating the ADA); 1999 Food & Drug Admin. Model

Food Code ¶ 2-201.12(A) (“The person in charge shall exclude a food employee from

a food establishment if the food employee is diagnosed with an infectious agent

specified under ¶ 2-201.11”) (last modified Feb. 27, 1999)

<http://vm.cfsan.fda.gov/~dms/fc99-toc.html>. It is beyond dispute that the staph virus

has the potential to infect others. Hence Fletcher’s medical condition was a matter of

legitimate concern to PCF, since her staph infection jeopardized her future employment

at PCF. When such concern for the public health exists, an employer’s need to know

trumps an employee’s right to privacy. Cf. Eddy v. Brown, 715 P.2d 74, 77 (Okla.

1986) (interpreting § 652B of the Restatement) (holding that an employee may not

claim a privacy interest in medical information probative of that employee’s fitness or

capacity to work).

For all of these reasons, we conclude that Fletcher lacked a reasonable

expectation of privacy with respect to knowledge of her staph infection. As a matter

of law, the jury could not reasonably conclude that Fletcher established “seclusion.”

B. Punitive Damages

The jury awarded Fletcher $50,000 in punitive damages. After the verdict was

entered, the district court granted PCF’s motion for judgment as a matter of law

because “there was insufficient evidence for a factual finding that defendant was guilty

of ‘extra-ordinary conduct’ or that plaintiff’s privacy was invaded with malice or

calloused indifference.” Order of October 13, 1999.
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Under Arkansas law, punitive damages are available only when a plaintiff first

obtains compensatory damages. See Hale v. Ladd, 826 S.W.2d 244, 247 (Ark. 1992)

(citations omitted). Because we reverse Fletcher’s compensatory damages award,

supra, Fletcher is not entitled to punitive damages.

DISPOSITION

We reverse the district court’s denial of PCF’s motion for judgment as a matter

of law on the invasion of privacy claim. We affirm the district court’s grant of PCF’s

motion for judgment as a matter of law on the punitive damages award.

McMILLIAN, Circuit Judge, concurring specially.

I agree that Fletcher failed to establish the third element of her invasion of

privacy claim because she failed to demonstrate an intent to keep knowledge about her

staph infection private. After learning from her doctor that she had a staph infection,

Fletcher told two coworkers about it. Such a disclosure is inconsistent with an intent

to maintain privacy. For that reason, I concur in the decision to reverse the denial of

judgment as a matter of law on the invasion of privacy claim and, given the reversal of

the compensatory damages award, to affirm the grant of judgment as a matter of law

on punitive damages.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.