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Continued use of fired employee’s name, accomplishments on website support appropriation claim

By Kathleen Kapusta, J.D.

Observing that since the Minnesota Supreme Court first recognized the tort of appropriation in 1998, the case law in that area has not been significantly developed, a federal district court in that state found that an employer’s failure to update its webpage, in which it referred to a former employee as a New York Times bestselling author and principal of the company, supported an inference that the company knowingly appropriated the use of his name. Accordingly, the court denied summary judgment on his invasion of privacy claim. However, it granted summary judgment to the company on the employee’s state law age bias claim (Wagner v Gallup, Inc, December 19, 2013, Ericksen, J).

Bestselling author. The employee began working for Gallup, Inc, in 1999 as a managing consultant. At the time he was terminated in 2011 at the age of 50, he held the title of “Subject Matter Expert,” and had coauthored two books for the company; the first, published in 2006, became a New York Times bestseller. Though he received various awards during his tenure with the Gallup, his internal customer engagement (ICE) scores and billable work began to decline in 2011. At that time, he was also working on a third book.

Termination. In October 2011, the employee’s supervisor, who was 35 years old, cautioned him about constantly referring to his book as it might “feel like old school,” and advised him not to think in the way he had “historically.” He was terminated a week later. The company, however, continued to include on its website an entry on the employee stating that he was a bestselling author and company principal. The employee subsequently sued for age discrimination in violation of the Minnesota Human Rights Act and invasion of privacy based on appropriation of his name and/or likeness.

Age discrimination. Though he contended that his supervisor’s young age, references to “historically” and “old school,” the maintenance of an ageist workplace, his outstanding performance record, and the unsubstantiated nature of Gallup’s stated reasons for termination together amount to direct evidence of discrimination, the court disagreed. It found that the supervisor used the word “historically” in explaining that the employee should try to think more creatively for clients rather than just relying on the same concepts as he had in the past. He used the term “old school” to refer to one of the employee’s books in recommending that before constantly referring to his books, the employee should consider whether others would find them actually relevant to the issue under consideration. The context of the conversation demonstrated that the supervisor was not referring to the employee’s age in a derogatory, or otherwise problematic, manner. Thus, the comments did not amount to direct evidence of age bias.

Though the employee established a prima facie case under the indirect method, the court found that Gallup had a legitimate, nondiscriminatory reason for terminating him: his low utilization on billable hours and his declining ICE scores. In response, the employee failed to establish pretext. Here, he did not contradict Gallup’s claim that his utilization on client work prior to his discharge had been low or otherwise demonstrate that he would in fact have had sufficient hours going forward. While he may have been using his time to work on a third book, the court refused to pass judgment on the propriety of the value Gallup chose to place on that activity compared to directly billable work. Nor was there any evidence that anyone with authority directed him to work on the book in lieu of performing client work.

The employee also could not dispute that his ICE scores declined. While he questioned the statistical significance of the change in his numbers, the court pointed out that Gallup was entitled to use whatever measure — including one lacking in rigor — of valued attributes it deemed appropriate, as long as doing so did not illegally discriminate. Because the employee failed to put forth any evidence that similarly-situated younger employees were treated differently or any other evidence of pretext, summary judgment was appropriate on this claim.

Invasion of privacy. The employee next contended that Gallup was liable for appropriation of his name and likeness based on its continued use, after his discharge, of the statement about him on its website. The employee did not dispute Gallup’s contention that when it first posted the statement it was accurate and Gallup was entitled to make it; rather, he faulted the company for failing to update the page to identify him as a “former” employee.

Gallup argued that because the statement was proper at the time it was written, it did not have an obligation to change it; thus, it could not have wrongfully appropriated the employee’s name. The court noted that while typically appropriation is an affirmative act, a failure to act may suffice if the circumstances allow for an inference of intentional appropriation. Here, there was evidence that the web page had been reconfigured multiple times since the employee’s discharge. In addition, he contended that he notified Gallup that he did not consent to the listing of him as a current employee by filing his complaint. Gallup, however, did not change the page for 19 months. From these facts, a reasonable jury could infer that Gallup knowingly appropriated use of the value of the employee’s name.

Also rejected was Gallup’s argument that the employee could not show it appropriated his name to confer a benefit on itself. The nature of the statement to which the employee objected could support a reasonable inference that Gallup continued to represent an affiliation that no longer existed for the purpose of deriving the benefit a company might expect from being affiliated with a New York Times bestselling author.

Damages. Finally, Gallup argued that the employee failed to state any damages. While the Minnesota Supreme Court has not opined on damages issues in the context of an appropriation claim, it recognized the tort of appropriation by reference to the Restatement’s formulation of it. Moreover, the court here observed, the Restatement notes that a plaintiff who has established invasion of his privacy may recover damages for “his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion.” Here, the employee testified that it was “particularly repugnant to me that on one hand I’m sitting at my kitchen table unemployed, and on the other hand during that three-month period of time, or working for an entirely different company, and Gallup is claiming that I am a principal of their organization.” For purposes of summary judgment, the court found this was sufficient to establish damages.