Gillis v. Reynolds

1988 Mass. App. Div. 44, 1988 Mass. App. Div. LEXIS 18

This text of 1988 Mass. App. Div. 44 (Gillis v. Reynolds) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillis v. Reynolds, 1988 Mass. App. Div. 44, 1988 Mass. App. Div. LEXIS 18 (Mass. Ct. App. 1988).

Opinion

Bohn, J.

This is an action in tort in which the plaintiff alleges that the defendants published false and defamatory information regarding her character and performance, resulting in the plaintiffs discharge from her place of employment. The plaintiffs complaint is in four counts. In Counts I, II and III, each brought against one of the three individual defendants, the plaintiff seeks damages for the publication of the alleged false and defamatory information. In Count IV, brought against defendant Canteen Corporation, she seeks damages for the alleged wrongful termination of her employment. The case was entered in the District Court of Lowell, was removed to the Superior Court by the defendants, and then remanded for trial.

On June 2,1987, ajudge of the district court allowed defendants’ motion for summary judgment and entered a judgment of dismissal in favor of all defendants on all counts. We affirm the judgment and dismiss the report.

The evidence in this case may be summarized as follows: In October, 1983, plaintiff began work for defendant Canteen Corporation as a food handler assigned to the cafeteria of the Apollo Computer Corporation. At that time, defendant LaGrasse was employed by the Canteen Corporation in a supervisory capacity as the food manager for the Apollo Computer Complex, defendant [45]*45Reynolds was employed in a supervisory capacity as the head food service manager of Canteen Corporation and defendant Bickford was employed by Canteen Corporation as the corporate chef for the Apollo Complex.

While in the employ of the Canteen Corporation, the plaintiff received numerous verbal warnings and at least two written warnings concerning her job performance.2 Specifically, on October 17,1985, defendants LaGrasse and Reynolds wrote to the plaintiff reprimanding her for her refusal to wear a complete uniform, for her disruption of staff, for her loud and abusive discussions, for her failure to follow her schedule and for her criticism of her fellow workers.

On November 11, 1985, defendant Reynolds, defendant LaGrasse and another wrote a second memorandum to plaintiff which again reprimanded her for her failure to wear a complete uniform, for her confrontational relationship with her co-workers, for her discussion of Canteen Corporation’s business with clients of the Apollo Corporation and for her continued failure to adhere to her schedule. This second communication, characterized by the defendants as a “final written warning”, advised the plaintiff that further violation would result in immediate termination.

On November 25,1985, plaintiff was terminated from her employment with Canteen Corporation. In her complaint, she alleged that her termination was the result of the October 17, 1985 and November 11, 1985 inter-office communications, that information contained in those communications was false and defamatory, and that she should be compensated for damages resulting from the publication of the defamatory information. In their answer and in their affidavits in support of their motion for summary judgment, the defendants deny that the information contained in the memoranda was false or defamatory. Moreover, claiming their limited privilege resulting from their employment relationship with the plaintiff, the defendants argue that the plaintiff has neither alleged nor shown any evidence that the defendants were motivated by malice, thus failing to show a genuine issue as to that material fact and entitling them to summary judgment.

1. A party is entitled to summary judgment if the “Pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Dist./Mun. Cts. R.Civ. P., Rule 56, 365 Mass. 824 (1974); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976). In the present case, the defendants are entitled to summary judgment if the pleadings, depositions and answers to interrogatories show that the communications which are the subject of the plaintiffs complaint were made in the context of an employment relationship, and that no genuine issue has been raised with respect to the motivation for those communications.

As a general rule, communications from a supervisor to a subordinate employee written in the course of the employment relationship for the purpose of improving the subordinate’s work product are protected by a conditional privilege that precludes recovery on the part of the employee unless the employee can show that the employer published the remark maliciously, Burns v. Barry, 353 Mass. 115, 119 (1967); Childs v. Erhard, 226 Mass. 454, 456 (1917); or excessively, Galvin v. The New York, New Haven and [46]*46Hartford, 341 Mass. 293, 297 (1960); or recklessly. Ezekiel v. Jones Motor Co., Inc., 374 Mass. 382, 390 (1978); Hutchinson v. New England Telephone & Telegraph, 350 Mass. 188, 191-192 (1966). The defendant, of course, must show that the communication was in the context of the employment relationship. Bander v. Metropolitan Life Insurance Company, 313 Mass. 337, 343 (1943). Once the defendant establishes the qualified privilege, however, the burden shifts to the plaintiff to prove that the privilege has been abused. Sheehan v. Tobin, 326 Mass. 185, 191-92 (1950); Connor v. Standard Publishing Co., 183 Mass. 474, 480 (1903); Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 134 (1984), review den., 393 Mass. 1102.

To avoid summaryjud'gment once the burden of proof has shifted, a plaintiff must show that the statements resulted from an expressly malicious motive, were recklessly disseminated, or involved a reckless disregard for the truth or the falsity of the information contained in the communication. Humphrey v. National Semiconductor Corp., supra at 135 (1984). See also Bratt v. International Business Machines, 392 Mass. 508, 517 (1977) (conditional privilege where medical information published). In the absence of such a showing, the motion for summaryjudgment will be allowed, even if the remark was in fact not true. Burns v. Barry, 353 Mass. 115, 119 (1967); Sheehan v. Tobin, 326 Mass. 185, 190 (1950); Doane v. Grew, 220 Mass. 171, 176 (1915). And see, generally, Arsenault v. Allegheny Airlines, Inc., 485 F. Supp. 1373 (1980), affirmed, 636 F. 2d 1199, cert. den. 102 S. Ct. 105.

In the present case, the pleadings, depositions, answers to interrogatories and affidavits show that the statements about which the plaintiff complained were made by Canteen Corporation’s supervisory personnel in the regular course of business as part of the employee review process. All of the statements at issue were contained within internal business communications, with no intended audience except the Canteen Corporation’s management personnel and the plaintiff. Those statements, theréfore, were protected by the conditional privilege discussed above, and the plaintiff was left to show the existence of a genuine issue with respect to malice or recklessness.

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1988 Mass. App. Div. 44, 1988 Mass. App. Div. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillis-v-reynolds-massdistctapp-1988.