Big Enough to Drive a Truck Through? Considering Florida’s “Ulterior Purpose” Exception to the Third Party Requirement of a Tortious Interference Claim
There is no basis for holding an individual liable under Title VII, the Florida Civil Rights Act, or the Florida private sector Whistleblower’s Act. So, managers and co-workers need not fear being sued for discrimination or retaliation. Only the employer can be held liable, right?
Not exactly. Supervisor and co-workers can be sued under one or more tort theories for conduct that violates one of these laws. For example, a plaintiff who sues her employer alleging that her supervisor sexually harassed her by groping or fondling her in violation of Title VII can also sue the supervisor for battery.
But what about garden variety discrimination or retaliation claims? Can the facts that support such a claim also support a claim against the plaintiff’s supervisor or co-worker for tortious interference with a business relationship? According to a recent decision by Florida’s Third District Court of Appeals, Alexis v. Ventura, Case No. 3D10-2879 (Fla. 3d DCA, June 29, 2011), the answer is yes.
Ketlyn Alexis was terminated from her job with Arbor E&T, LLC. She filed suit under the Florida Civil Rights Act, claiming that her supervisor, Lilliam Ventura, and others subjected her to a hostile work environment based on her race (black) and national origin (Haitian.).
Alexis later amended her complaint to add Ventura as a defendant, alleging that Ventura tortiously interfered with an advantageous business relationship that Alexis had with Arbor E&T. In particular, Alexis alleged that Ventura made a number of hostile statements and engaged in a number of hostile acts against Alexis. For example, Alexis alleged in her complaint that Ventura told other employees: “I am the boss and I am in charge and I’m going to make that Haitian Bitch know it.” Alexis alleged that these statements and acts were motivated by a discriminatory intent to undermine Alexis’ job performance in the eyes of Arbor E&T, and that these statements and acts by Ventura ultimately led to Alexis’ termination by Arbor E&T.
Ventura filed a motion to dismiss this count and to dismiss Ventura as a defendant to the action. Ventura argued that, as a matter of law, Alexis could not state a claim against Ventura for tortious interference with a business relationship because Ventura and Alexis were co-workers. The trial court granted the motion, dismissed the claim, and dismissed Ventura as a party defendant.
On appeal, the Third DCA reversed the trial court’s order. The court noted that to state a claim for unlawful interference with an advantageous business relationship, Alexis must have alleged the following elements: 1. The existence of a relationship between Alexis and her employer, under which Alexis has legal rights; 2. Ventura’s knowledge of the relationship; 3. An intentional and unjustified interference with that relationship; 4. By a third party; 5. Resulting in damages to Alexis caused by the interference.
The court’s decision turned on the fourth element: whether Ventura could be characterized as a “third party” where she and Alexis were co-employees of Arbor E&T. Generally, the court noted, “in the context of a managerial or supervisory employee terminating a plaintiff’s employment, an action will usually not lie against the terminating employee because he/she is considered a party to the employment relationship.”
But, the court wrote, “[t]here is a recognized exception to this general rule, as explained in O.E. Smith’s Sons, Inc., v. George, 545 So. 2d 298 (Fla. 1st DCA 1989):
For the interference to be unjustified, the defendant must be a third party, external to the business relationship. However, the privileged interference enjoyed by a party that is integral to the business relationship is not absolute. The privilege is divested when the defendant “acts solely with ulterior purposes and the advice is not in the principal’s best interest.” Id. at 299 (quoting Sloan v. Sax, 505 So. 2d 526, 528 (Fla. 3d DCA 1987)) (emphasis supplied).
The court noted further that, “[a]lthough ‘an allegation that [defendant] was maliciously motivated does not by itself mean that [defendant] acted outside the scope of his employment,’ Sloan, 505 So. 2d at 528, an allegation that the defendant was not acting on the employer’s behalf or was acting to its detriment satisfies the “third party” requirement.”
Because Alexis had made the requisite allegations, the Third DCA ruled that Alexis had stated a claim against Ventura for tortious interference with an advantageous business relationship.
It is, of course, a relatively easy matter for a plaintiff to allege that her supervisor, in discriminating against or retaliating against her in violation of the law, was acting solely with ulterior purposes, and not in the best interests of the employer. Indeed, while an employer accused of discrimination or retaliation will typically deny such allegations, it will also likely take the position that if its supervisor discriminated against or retaliated against the plaintiff, the supervisor was acting with ulterior purposes and not in the employer’s best interest. After all, an employer is not going to admit that it encourages or condones unlawful discrimination or retaliation.
So, it would seem that the “ulterior purpose” exception to the third party requirement of a tortious interference claim is “big enough to drive a truck through,” at least in cases of discrimination or retaliation.
The inclusion of a supervisor as a co-defendant complicates an employer’s case. Depending on the facts, the supervisor may have to retain separate counsel because of a potential conflict of interest. And the employer may choose, or be obligated, to pay for the supervisor’s defense, which increases the overall cost of the defense. If the employer agrees to indemnify the supervisor in the event of an adverse judgment, the employer must realize that there are no automatic caps on damages in a tort claim, unlike claims under Title VII or the Florida Civil Rights Act.
Plaintiff-side lawyers realize that the addition of a supervisor-defendant typically drives up the settlement value of the case, and may even make a plaintiff’s verdict more likely at trial. Thus, in the wake of the Alexis case, it seems likely that Florida employers will see an increase in tortious interference claims against their supervisors.
Posted by Richard Tuschman
@ July 14, 2011 02:34 PM EDT