Barish v. United Parcel Service, Inc.

Citations: 837 F. Supp. 325; 1993 U.S. Dist. LEXIS 16533; 1993 WL 482459Docket: Civ. No. 92-1382-FR

Court: District Court, D. Oregon; November 17, 1993; Federal District Court

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United Parcel Service, Inc. (UPS) seeks summary judgment against David J. Barish, who has alleged negligence and malicious prosecution stemming from an incident involving UPS delivery driver Renee Ortega. On September 18, 1991, Ortega reported to her supervisor, Mike Terry, that Barish had inappropriately touched her during a delivery. Following this, Ortega was advised to seek medical attention, and her husband subsequently contacted the police. On September 19, Ortega provided a detailed account of the alleged assault to the Tigard Police Department, and based on her complaint, Barish was indicted for sexual abuse. However, the criminal charges against him were later dismissed. 

Barish's lawsuit against UPS claims malicious prosecution and negligence, prompting UPS to request summary judgment. The legal standard for summary judgment requires that there be no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The burden is on the moving party to demonstrate the absence of such issues, after which the opposing party must present evidence to show a genuine issue for trial. Special considerations dictate that any doubts regarding material facts be resolved in favor of the nonmoving party, and all inferences must be drawn in their favor.

Barish's claim for malicious prosecution against UPS hinges on four elements: 1) initiation of a criminal proceeding by UPS; 2) lack of probable cause; 3) improper motive; and 4) favorable termination of the proceeding. UPS contends that it did not initiate the criminal charges against Barish, as Ortega, not UPS, contacted the police and filed the complaint during her personal time. Barish argues that Ortega acted within her employment scope and that UPS ratified her actions by not discouraging the charges and by cooperating with the district attorney. However, the court grants UPS's motion for summary judgment, determining that UPS did not initiate criminal proceedings and its cooperation does not constitute initiation. Additionally, there is no evidence of UPS's vicarious liability for Ortega's actions.

In the negligence claim, Barish alleges that UPS negligently allowed Ortega to interact with him and failed to inform authorities of her history of false accusations. Barish references a past incident involving Ortega and Dan Van Dyke, but the court finds this incident does not support his claim of false accusations, as Ortega did not file charges or formally complain, and UPS acted appropriately in its investigation.

Ortega's lack of a documented history of making false charges prevents UPS from being deemed negligent in her retention as a route driver or in failing to disclose any information about her after she accused Barish. The court concludes that UPS could not have reasonably foreseen Ortega making accusations against Barish, as established in relevant case law. An employer is only liable for negligent retention if it is known that an employee poses a danger, which was not the case here. Although Barish claims Ortega had prior "unsubstantiated" sexual harassment allegations, he failed to provide evidence contradicting her accounts. Regarding Ortega's potential retaliatory discharge, Title VII prohibits discrimination against employees for reporting harassment, and Ortega's statements about Van Dyke were supported by reasonable factual basis. Barish's argument that UPS negligently failed to disclose Ortega's supposed history of false charges is moot, as there is no legal obligation for UPS to disclose such information to Barish or law enforcement. Consequently, UPS's motion for summary judgment is granted, leading to a judgment in favor of UPS and the dismissal of the case against it.