McNamee v. Jenkins

8 Mass. L. Rptr. 433
CourtMassachusetts Superior Court
DecidedApril 29, 1998
DocketNo. 946613
StatusPublished

This text of 8 Mass. L. Rptr. 433 (McNamee v. Jenkins) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNamee v. Jenkins, 8 Mass. L. Rptr. 433 (Mass. Ct. App. 1998).

Opinion

Borenstein, J.

This matter comes before the Court on defendants’, Richard B. Jenkins, Jr. (“Jenkins”) and Lisa M. Chinal (“Chinal”), motion for summary judgment. Defendants have moved for summary judgment on the grounds that there is no genuine issue of material fact in dispute and pursuant to Mass.R.Civ.P. 56(c), they are entitled to judgment as a matter of law on Counts I and II of plaintiffs, David R. McNamee (“McNamee") complaint.1 For the reasons set forth below, defendants’ motion for summary judgment as to Counts I and II will be ALLOWED.

BACKGROUND

According to the summary judgment record, the following facts are undisputed: In 1991, McNamee was a sergeant for the Arlington Police Department and was assigned as a supervisor on the night shift. At that time, Jenkins and Chinal were police officers for the Arlington Police Department and were assigned to Sergeant McNamee’s platoon and under his supervision on the night shift.

On November 8, 1991, Officer Richard Femia filed a grievance on behalf of defendant Jenkins and the Arlington Police Patrolman’s Association alleging that Jenkins had been the subject of racial slurs by a ranking officer, on a continuing basis, and with the knowledge of other ranking officers. Pursuant to a request from John F. Carroll (“Carroll”), Director of Police Services,2 Jenkins and Chinal submitted reports in November of 1991 documenting alleged incidents of racial discrimination by a ranking officer, Sergeant McNamee. Jenkins’ report alleged that McNamee often addressed Jenkins by shouting instructions and profanities, that McNamee filed a false report on September 21, 1991 regarding the location of Jenkins’ cruiser during his shift, and that on November 2, 1991 McNamee used racial slurs in his presence. Chinal’s report alleged that on September 21, 1991 Jenkins’ cruiser was not in an inappropriate location and that she heard McNamee screaming orders at Jenkins over the radio.

On November 25, 1991, John Maher, Arlington’s Director of Labor Relations, responded to the grievance by indicating there was insufficient evidence to conclude Sergeant McNamee had unduly harassed Officer Jenkins.

Oh December 2, 1991, Officer Jenkins filed a complaint in the Middlesex Superior Court naming the Town of Arlington as the sole defendant. This action sought injunctive relief, i.e. the removal of McNamee as his supervisor. No action was taken by the Court and on January 7, 1992, McNamee was transferred from the night shift to the day shift.

In November of 1994, Sergeant McNamee filed this action alleging the statements made by Jenkins and Chinal, pursuant to Carroll’s request, are defamatory and as a result of defendants’ malicious interference, McNamee was transferred to the day shift, thus losing the eight percent (8%) differential from the night shift.

In response to plaintiffs complaint, defendants have filed counterclaims against McNamee alleging harassment and discrimination, however, the details of those claims are not relevant to the current motion.

DISCUSSION

A motion for summary judgment is in order, and shall be granted “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 a judgment as a matter of law.” Mass.R.Civ.P. 56(c); Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 202 (1995); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party’s case or by “demonstrating that proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To defeat summary judgment, the non-moving party must articulate specific facts, establishing the existence of a genuine issue of material fact. Pederson, 404 Mass. at 17. ”[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion . . .” LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

[434]*434The Supreme Judicial Court has indicated they “favor the use of summary judgment procedures in cases where defamation is alleged.” Mulgrew v. Taunton, 410 Mass. 631, 632 (1991), quoting King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987).

A. Count I — Defamation

Count I of plaintiffs complaint alleges that Mc-Namee was defamed by the allegations of Jenkins that he had made a racial slur to Jenkins and had subjected Jenkins to harassment. Additionally, McNamee alleges he was defamed by the statements of Jenkins and Chinal claiming that he had filed a false police report.

In support of their motion for summary judgment, defendants assert that Sergeant McNamee is a public figure and that defendants are public officials performing their official duties, therefore defendants’ statements are protected by a conditional or qualified privilege.

Although this Court is unwilling to interpret Massachusetts case law as holding that a police sergeant is a public figure per se, this Court does, however, find the defendants’ statements subject to a qualified privilege as statements made by public officials performing their official duties. “The conditional privilege is meant to allow public officials to speak freely on matters of public importance. The public has an interest in having a police force comprised of competent and able individuals.” Mulgrew, 410 Mass. at 635. Moreover, the alleged defamatory statements by defendants were made pursuant to a union grievance filed by a third party and were published as a report submitted to their superior officer. Because defendants, as publishers of the statements, and Carroll, as the person receiving the statement, have a common interest in the subject, to investigate a union grievance, and the statements further that interest, defendants’ statements are protected by a qualified privilege. Humphrey v. National Semiconductor Corp., 18 Mass.App.Ct. 132, 133 (1984).

As public officials or persons with a common interest, defendants enjoy a conditional or qualified privilege that “immunizes [them] from liability unless [they] acted with actual malice ... or unless there is unnecessary, unreasonable or excessive publication” and the plaintiff establishes that the defendants published the defamatory information recklessly." Mulgrew, 410 Mass. at 634, quoting Tosti v. Avik, 386 Mass. 721, 726 (1982); see also Bratt v. International Business Machs. Corp., 392 Mass. 508, 509 (1984). In other words, to prevail on defendants’ motion for summary judgment, McNamee must establish that defendants abused their privilege. Humphrey, 18 Mass.App.Ct. at 134.

This Court finds no evidence that defendants abused their privilege by acting with actual malice or for some ulterior purpose “other than protecting the interest for the protection of which the privilege is given.” Id. at 134.

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Related

Bratt v. International Business MacHines Corp.
467 N.E.2d 126 (Massachusetts Supreme Judicial Court, 1984)
Humphrey v. National Semiconductor Corp.
463 N.E.2d 1197 (Massachusetts Appeals Court, 1984)
Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
LaLonde v. Eissner
539 N.E.2d 538 (Massachusetts Supreme Judicial Court, 1989)
King v. Globe Newspaper Co.
512 N.E.2d 241 (Massachusetts Supreme Judicial Court, 1987)
Community National Bank v. Dawes
340 N.E.2d 877 (Massachusetts Supreme Judicial Court, 1976)
Kourouvacilis v. General Motors Corp.
575 N.E.2d 734 (Massachusetts Supreme Judicial Court, 1991)
Flesner v. Technical Communications Corp.
575 N.E.2d 1107 (Massachusetts Supreme Judicial Court, 1991)
Tosti v. Ayik
437 N.E.2d 1062 (Massachusetts Supreme Judicial Court, 1982)
Mulgrew v. City of Taunton
574 N.E.2d 389 (Massachusetts Supreme Judicial Court, 1991)
Nashua Corp. v. First State Insurance
648 N.E.2d 1272 (Massachusetts Supreme Judicial Court, 1995)
Kurker v. Hell
689 N.E.2d 833 (Massachusetts Appeals Court, 1998)

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Bluebook (online)
8 Mass. L. Rptr. 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnamee-v-jenkins-masssuperct-1998.