                      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        *
                                 ___________

                               Submitted: June 12, 2000

                                    Filed: August 9, 2000
                                     ___________

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

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.
                            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


      1
       Although she completed the accident report form, Fletcher never made a claim
under the workers’ compensation laws.

                                          -2-
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.




      2
       See 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.
                                          -3-
       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 cross-
examination, 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.

                                          -4-
                                    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

                                          -5-
       (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

                                            -6-
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).



      3
        PCF did not cite (and we could not locate) any Arkansas authority to support
this remarkably broad proposition.
                                          -7-
       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).




       4
        Although 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.
                                             -8-
       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, student-
athletes at Stanford University sued the National Collegiate Athletic Association

                                           -9-
(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).

      In Moffett, 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.


                                         -10-
       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.


      5
       Sawyer 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.
                                         -11-
       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.




                                         -12-
        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.




                                         -13-
