United States Court of Appeals For the First Circuit
No. 18-2150
ALAN ZEIGLER,
Plaintiff, Appellant,
v.
MICHAEL RATER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Lynch, Selya, and Barron, Circuit Judges.
Chip Muller, with whom Muller Law, LLC was on brief, for appellant. Rebecca G. Capozzi, with whom Robert L. Bouley and McCarthy, Bouley, Barry & Morgan, P.C. were on brief, for appellee.
October 1, 2019 SELYA, Circuit Judge. This case is a defamation case,
brought against a psychiatrist who disseminated an allegedly
libelous report to an employer about an employee's fitness to
return to work after a period of medical leave. Whether particular
speech is actionable as defamation sometimes depends on the role
of the speaker, and so it is here. The challenged speech was
published under a conditional privilege. We conclude that no
reasonable jury could find that the defendant abused this
privilege. Accordingly, we affirm the district court's entry of
summary judgment in favor of the defendant.
I. BACKGROUND
We briefly rehearse the facts and travel of the case,
viewing the events in the light most hospitable to the nonmoving
party (here, the plaintiff). See Houlton Citizens' Coal. v. Town
of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Plaintiff-appellant
Alan Zeigler began working as an information technology
professional at Atrius Health, Inc. (Atrius) in 2005. In January
of 2015, Zeigler began reporting to a new supervisor, Christopher
Joseph. Zeigler — who was then in his mid-fifties — contends that
Joseph consistently made derogatory remarks about his age. The
stress purportedly caused by these remarks culminated in a panic
attack, prompting Zeigler to take medical leave in April of 2015.
Prior to his expected return that June, Zeigler spoke by
telephone with an Atrius human resources representative. During
- 2 - this exchange, Zeigler stated that he had become so angry with
Joseph (before his panic attack) that Joseph "might have got[ten]
hurt" had "it been somebody else who had not had the skills to
keep [their anger] under control." The human resources department
subsequently required Zeigler to undergo a psychiatric evaluation
to determine his fitness to return to work.
Atrius enlisted defendant-appellee Dr. Michael Rater to
perform this task, following a referral from Scope Medical, LLC
(Scope). Dr. Rater was no stranger to such assignments: he
supplements his practice by performing fitness-for-duty
evaluations for employers through referrals from intermediaries
such as Scope. The purpose of a fitness-for-duty evaluation is to
assess whether an employee can perform his job without posing a
safety risk to other workers or himself.
In preparing to evaluate Zeigler's ability to return to
work, Dr. Rater received and reviewed certain documents supplied
by Atrius, including medical records from Zeigler's primary care
physician. These records contained notations to the effect that
Zeigler was "stressed and angry" and "[h]aving difficulty with
[his] new director." Dr. Rater conducted an in-person examination
of Zeigler on June 11, 2015 for one hour.
In a written report issued on June 26 (the June report),
Dr. Rater concluded "to a reasonable degree of medical certainty"
that Zeigler had "learned no new skills or techniques to manage
- 3 - his anger and agitation symptoms" and thus was unfit "to return to
his same employment under the same manager." Dr. Rater recommended
that Zeigler consult weekly with a mental health provider to
develop anger management skills.
Zeigler began seeing Ivy Marwil, a licensed social
worker, for regular therapy sessions. After three such sessions,
Marwil reported to Dr. Rater that she saw no indication that
Zeigler had or would ever act on his anger at work. She added
that, in her opinion, Zeigler was ready to return to work at
Atrius. At Atrius's behest, Zeigler again saw Dr. Rater on July
30, 2015. Zeigler told Dr. Rater that he had acquired valuable
anger management skills in therapy and that he felt positive about
the prospect of returning to work. Based on his in-person
evaluation and his review of Marwil's letter, Dr. Rater told Scope
(in a verbal report on July 30, 2015) that Zeigler was fit to
return to work.
On August 4, Zeigler returned to the workplace. Within
a few hours of Zeigler's arrival, two coworkers — Jean George and
Alida Fountaine — reported unsettling interactions with Zeigler to
Adam Centofanti, an Atrius human resources representative. George
served as Director of Health Information Management and Site
Administrator, and Fountaine served as the Manager of IT Client
Services. George and Fountaine first reported their encounters
- 4 - with Zeigler to Centofanti verbally and, at Centofanti's request,
followed up with e-mails.
At 10:59 a.m., George e-mailed the following message to
Centofanti:
With today being Alan Zeigler's first day back into the office, as the Site Administrator I went over to welcome him back. My conversation with Alan had been rather un-nerving given his comments regarding Chris Joseph, and everyone at Atrius. He kept mentioning how he is "suing" and that Atrius wouldn't allow him to come back to work in June. He also mentioned how Chris Joseph stated he was "too old for his role[.]"
Alan referenced numerous organizations that he has filed claims with, and one in particular that he felt the physician that diagnosed him as being aggressive "is being sued for [m]alpractice, I think Atrius told him to say that[.]" He clearly is agitated and I'm concerned with his ability to control his emotions. I kept trying to tell him, it's great to have him back and that it's a new start, but he really is just negative and stated "I won't be here long with all the law suits I have[.]"
Is there a transition plan available for staff returning from an FMLA for both the staff member and the staff that directly report to them?
Happy to help him in any way I can, Jean
At 12:07 p.m., Fountaine sent the following e-mail to
Alan Zeigler stopped by my office this morning around 10:00 or so . . . . I'm not sure if he
- 5 - was venting, but it was a strange one-sided conversation.
It was the first time I had seen him in a long time - I said 'hi Alan, nice to see you. It's been a while!' Alan agreed, and then added 'I was ready to come back in June but was not allowed to. I used all of my accrued time and then 'they' realized they had to let me come back[.]' He continued to talk about issues with Chris Joseph. He stated that his last day in the office, he had a meeting with Chris J. and HR and he was so angry that he left right after the meeting and could not recall driving home . . . . He had to go to the hospital, his EKG was abnormal, he had a panic attack . . . . He stated that Chris J told him that he was older and should consider a different career, then commented that he had been doing this for 10 years and he knew how to perform his job. He stated that he was told he needed anger management. He stated his wife contacted someone to advise Alan had the flu, and then they started receiving harassing emails.
He spoke about other specifics as well, but I don't remember the details - at one point I started to block him out because he was going on for about 10 minutes and I had no frame of reference so I couldn't follow him. I just kept saying 'I'm sorry Alan, hope everything works out[.]'
He did make a comment about his lawyer - indicating that Chris J had made a comment that was inappropriate.
I thought it was bizarre - it felt strange. This was the first time I had seen him in months, and he immediately started spitting out details about incidents that had allegedly transpired while he was out . . . which I had not been involved with so I couldn't even grasp the information. It was definitely weird. I tried to be positive, change the subject . . . no luck.
- 6 - After receiving these accounts, Centofanti met with
Zeigler and informed Zeigler that coworkers had reported
uncomfortable interactions with him.1 Centofanti placed Zeigler
on paid administrative leave, and security personnel escorted him
from the building, collecting his access card and keys.
Kirk Hager, the Director of Field HR Operations and
Employee and Physician Relations as well as the Director of Labor
at Atrius, stated in his deposition that he, Centofanti, and legal
counsel for Atrius decided to consult with Scope and Dr. Rater
about Zeigler's fitness for duty following Zeigler's ephemeral
return to work. Hager, who was on vacation when the decisionmaking
process began, stated that he believed Centofanti and legal counsel
decided what documents would be sent to Dr. Rater. Upon his return
from vacation, Hager approved that compendium of documents (which
included George's and Fountaine's written accounts) and authorized
the document transmission to Scope. The record contains no
evidence about the exact date on which either Scope or Dr. Rater
received these materials.
In addition to George's and Fountaine's e-mails, Dr.
Rater received the following e-mail authored by Centofanti on
August 5, 2015 at 12:39 p.m.:
I had met with Alan (with security), with the knowledge of his recent interactions with Jean
1 Although Zeigler was told that coworkers felt unsettled by his comments, he was not informed of the coworkers' identities.
- 7 - George and Alida Fountaine. I asked Alan how his day was going. He let me know that things were good, he was settling in and people were coming in and saying Hi. I informed him I had received information that staff members had expressed some discomfort with some of the interactions he had with them. He asked who, and if he could confront them. I let him know that he cannot confront them and I am looking into the concerns. I informed him he has to leave the premises until further notice. I let him know that he was not suspended, and he would be placed on administrative leave and will be paid during this time. I also let him know that this action isn't punitive as we are investigating the concern and will circle back with him as soon as we are able. Alan then informed me that he has filed an MCAD charge and is suing Scope for [m]alpractice. Alan thanked me. Victor (security) escorted him out, collected his access card and keys.
Based on these new pieces of information and his
knowledge of Zeigler's full medical record, Dr. Rater issued a
written report on August 10, 2015 (the August report), in which he
concluded that Zeigler would be unfit to return to work for at
least three more months. Relatedly, he stated that coworkers'
accounts of Zeigler's "agitation and perseveration" illustrated
Zeigler's "lack of ability to perform his essential job functions."
Dr. Rater suggested that, while on leave, Zeigler should attend
weekly therapy sessions.
In Zeigler's view, the August report contained two
libelous statements. First, Dr. Rater wrote that Zeigler was not
"psychologically able to provide high-level project management
expertise or to coordinate overseeing or carrying out activities
- 8 - needed to fulfill assigned initiat[ive]s and projects, as he is
too distracted and emotionally attached to his grievance issues."
Second, Dr. Rater wrote that Zeigler would not be able to "work
effectively with coworkers to assure adherence to quality
standards," "provide leadership direction and guidance to project
personnel," "direct and support staff to assure departmental
effectiveness," "interview, select, orient, or train employees,"
"maintain ongoing relationships with outside agencies,
consultants, and contractors," or "represent management on
inter-practice and/or cross organizational teams." These
statements appear in the "Summary and Conclusions" section of the
August report and are labelled in that document as "opinions . .
. stated to a reasonable degree of medical certainty."
In late August of 2015, Atrius placed Zeigler on unpaid
leave. Zeigler resigned in October of that year, approximately
one month after initiating suit against several defendants
(including Dr. Rater).2 Zeigler lodged two claims against Dr.
Rater, one for libel per se and one for medical malpractice. In
pretrial proceedings, Zeigler voluntarily dismissed the medical
malpractice claim. Following the completion of discovery, Dr.
Rater moved for summary judgment on the remaining libel claim.
2Zeigler's claims against the other defendants — Atrius and Joseph — are not implicated in this appeal, and we make no further reference to them.
- 9 - After briefing and argument, the district court entered summary
judgment in Dr. Rater's favor, holding that the challenged
statements in the August report were conditionally privileged and
that Zeigler had offered insufficient evidence to show that Dr.
Rater abused the conditional privilege.3 This timely appeal
ensued.
II. ANALYSIS
We now reach the merits of this appeal, mindful that our
review of the entry of summary judgment is de novo. See Faiella
v. Fed. Nat'l Mortg. Ass'n, 928 F.3d 141, 145 (1st Cir. 2019). A
district court may grant summary judgment only if "the record,
construed in the light most congenial to the nonmovant, presents
no genuine issue as to any material fact and reflects the movant's
entitlement to judgment as a matter of law." McKenney v. Mangino,
873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311
(2018); see Fed. R. Civ. P. 56(a). Where, as here, the motion is
based upon the absence of a genuine issue of material fact, the
nonmovant bears the burden of producing sufficient evidence to
identify a dispute of fact that is more than "merely colorable."
3 In his amended complaint, Zeigler premised his libel claim solely on statements made by Dr. Rater in the June report. When opposing summary judgment, however, Zeigler referred only to statements in the August report. The district court evaluated Zeigler's libel claim exclusively through the lens of the August report, and the parties have focused their appellate arguments solely on the August report. Consequently, we confine our analysis to the August report.
- 10 - Faiella, 928 F.3d at 145 (quoting Flovac, Inc. v. Airvac, Inc.,
817 F.3d 849, 853 (1st Cir. 2016)).
Since this case is brought under diversity jurisdiction,
see 28 U.S.C. § 1332(a), state law provides the substantive rules
of decision, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
The parties agree that Massachusetts law controls, and we will
"honor the parties' reasonable agreement" on this point. Artuso
v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011).
Under Massachusetts law, a libel plaintiff must
establish that the defendant published "a false statement
regarding the plaintiff, capable of damaging the plaintiff's
reputation in the community, which either caused economic loss or
is actionable without proof of economic loss." White v. Blue Cross
& Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass. 2004)
(footnote omitted); see Sindi v. El-Moslimany, 896 F.3d 1, 13 (1st
Cir. 2018). A statement in the form of an opinion may be defamatory
but "is actionable only if it implies the allegation of undisclosed
defamatory facts as the basis for the opinion." Howell v. Enter.
Publ'g Co., 920 N.E.2d 1, 27 (Mass. 2010) (quoting Restatement
(Second) of Torts § 566 (Am. Law Inst. 1977)). An "expression of
opinion based on disclosed or assumed nondefamatory facts is not
itself sufficient for an action of defamation." Lyons v. Globe
Newspaper Co., 612 N.E.2d 1158, 1161 (Mass. 1993) (quoting Nat'l
- 11 - Ass'n of Gov't Emps. v. Cent. Broad. Corp., 396 N.E.2d 996, 1001
(Mass. 1979)).
In asking that we uphold the district court's entry of
summary judgment, Dr. Rater submits that the challenged excerpts
from his August report constitute nonactionable expressions of
opinion. Like the district court, we deem it unnecessary to decide
this question: even assuming that the challenged statements were
actionable — a matter that we do not decide — they were nonetheless
protected by a conditional privilege. We explain briefly.
Massachusetts recognizes a conditional common law
privilege for otherwise defamatory statements "where the publisher
and the recipient have a common interest, and the communication is
of a kind reasonably calculated to protect or further it." Foley
v. Polaroid Corp., 508 N.E.2d 72, 79 (Mass. 1987) (quoting Sheehan
v. Tobin, 93 N.E.2d 524, 528 (Mass. 1950)). One variant of this
conditional privilege arises when the challenged publication "is
reasonably necessary to the protection or furtherance of a
legitimate business interest." Id. (quoting Bratt v. Int'l Bus.
Machs. Corp., 467 N.E.2d 126, 131 (Mass. 1984)). Another variant
arises when an employer "disclose[s] defamatory information
concerning an employee" that is "reasonably necessary to serve the
employer's legitimate interest in the fitness of an employee to
perform his or her job." Bratt, 467 N.E.2d at 129. The burden of
establishing the existence and applicability of a conditional
- 12 - privilege rests with the publisher of the allegedly defamatory
communication (here, Dr. Rater). See Jones v. Taibbi, 512 N.E.2d
260, 270 (Mass. 1987).
The parties agree that Dr. Rater's statements in the
August report were, as an initial matter, conditionally
privileged. This is consistent with precedent from
Massachusetts's highest court — the Supreme Judicial Court (SJC)
— which makes it pellucid that a conditional privilege covers the
challenged statements. After all, the SJC recognizes a conditional
privilege in cases in which "the publisher and the recipient have
a common interest, and the communication is of a kind reasonably
calculated to protect or further it." Foley, 508 N.E.2d at 79
(quoting Sheehan, 93 N.E.2d at 528). Although Atrius did not
employ Dr. Rater, Atrius and Dr. Rater plainly shared a common
interest in evaluating Zeigler's fitness to return to work, and
the allegedly defamatory statements in the August report were
published in furtherance of that common interest. What is more,
the SJC has acknowledged the "settled" principle that "a
communication respecting the character of an employee . . . is
qualifiedly privileged if made in good faith by a person having a
duty in the premises to one who has a definite interest therein."
Bratt, 467 N.E.2d at 133 (alteration in original) (quoting Leonard
v. Wilson, 8 So. 2d 12, 13 (Fla. 1942)); see Doane v. Grew, 107
N.E. 620, 621 (Mass. 1915) (finding statements about former
- 13 - servant's "character and capabilities" conditionally privileged
when made to prospective employer).
Finally, we note that the SJC already has approved a
conditional privilege for disclosures by an employer of medical
information relevant to an employee's fitness for duty. See Bratt,
467 N.E.2d at 129. In so holding, the SJC cited approvingly to a
district court opinion finding a Navy psychiatrist's statements
about a Navy engineer's fitness for duty conditionally privileged.
See id. at 133 (citing Hoesl v. United States, 451 F. Supp. 1170,
1176 (N.D. Cal. 1978), aff'd, 629 F.2d 586 (9th Cir. 1980) (per
curiam)). We see no reason why the SJC would treat the statements
of a psychiatrist referred to an employer by an intermediary for
the purpose of conducting a fitness-for-duty examination
differently than the statements of an internal psychiatrist
performing precisely the same task.
The existence of a conditional privilege, in and of
itself, does not fully insulate defamatory speech from tort
liability. A conditional privilege may be lost if that privilege
is abused. See Tosti v. Ayik, 437 N.E.2d 1062, 1065 (Mass. 1982).
The plaintiff must carry the burden of establishing abuse. See
Shore v. Retailers Comm. Agency, Inc. (In re Retailers Comm.
Agency, Inc.), 174 N.E.2d 376, 379 (Mass. 1961).
Massachusetts law recognizes two ways in which a
defendant may relinquish the protection of a conditional
- 14 - privilege: by publishing statements recklessly or by publishing
statements with actual malice. See Mulgrew v. City of Taunton,
574 N.E.2d 389, 391 (Mass. 1991). Here, Zeigler urges us to find
that Dr. Rater's statements were made both recklessly and
maliciously. We separate this exhortation into its component
parts, first inquiring into Zeigler's claim of recklessness and
then inquiring into his claim of actual malice.
1. Recklessness. With respect to recklessness, it is
apodictic that a defendant whose statements are conditionally
privileged forfeits the privilege if the plaintiff proves, at a
minimum, that the challenged statements were "unnecessary,
unreasonable, or excessively published." Foley, 508 N.E.2d at 79.
If, say, communications are privileged only as between certain
parties, a defendant may lose the privilege by unnecessarily or
unreasonably publishing those communications to parties as to whom
they are not privileged. See Galvin v. N.Y., New Haven & Hartford
R.R. Co., 168 N.E.2d 262, 266 (Mass. 1960). So, too, a defendant
may act recklessly by publishing a statement "without reasonable
grounds for believing it was true," particularly if the statement
concerns "verifiable matters" that are "susceptible of precise
check." Shore, 174 N.E.2d at 381 (holding that trier of fact could
find reckless publication where defendant misreported plaintiff's
bankruptcy and criminal record).
- 15 - In this case, Zeigler makes no argument — and the record
contains no evidence — that Dr. Rater published the August report
excessively or to anyone other than Atrius and Scope (as to each
of whom the publication was conditionally privileged). Hence, his
claim of recklessness hinges on whether Dr. Rater had reasonable
grounds for deeming Zeigler unfit to perform his essential duties.
See id.
To this end, Zeigler's principal contention is that a
reasonable factfinder could determine that, in compiling the
August report, Dr. Rater recklessly relied on coworkers' biased
accounts of his ill-fated return to Atrius. Although Zeigler
asserts that Dr. Rater based the August report exclusively on the
coworker e-mails, the record simply does not support this
assertion. Both the August report and Dr. Rater's deposition
testimony make pellucid that he viewed those e-mails against the
backdrop of his own prior mental status examinations and Zeigler's
full medical record.
Even were we to assume that Dr. Rater's statements were
largely based on the coworker e-mails, no rational factfinder could
conclude, on this record, that Dr. Rater lacked reasonable grounds
for making those statements. As a general matter, we think it
evident that a medical professional charged with evaluating a
subject's fitness for duty may rely on anecdotal evidence — at
least when, as in this case, the anecdotal evidence is comprised
- 16 - of plausible first-hand accounts. Cf. Sovie v. Town of North
Andover, 742 F. Supp. 2d 167, 176 (D. Mass. 2010) (noting that
defendant who authored memorandum outlining reasons for
plaintiff's termination "was entitled to rely" on other employees'
observations); Judd v. McCormack, 535 N.E.2d 1284, 1289 (Mass.
App. Ct. 1989) (explaining that defendant who signed letter
evaluating plaintiff's performance in training program could rely
on veracity of instructors' first-hand observations).
In this instance, the record makes manifest that Dr.
Rater had scant reason to question the coworkers' accounts. After
all, the e-mails did not issue from the ether: they were furnished
to Dr. Rater by Atrius human resources representatives, who found
the contents credible and concerning. Indeed, after receiving
George's and Fountaine's e-mails, Centofanti acted on them by
meeting with Zeigler with security personnel present. Centofanti
then directed a security officer to escort Zeigler from the
building and take Zeigler's access card and keys. Centofanti,
Hager, and Atrius's legal counsel subsequently determined, based
on this new information, that Dr. Rater should be contacted for
another assessment of Zeigler's fitness for duty. What is more,
the coworkers' e-mails collectively bore indicia of reliability in
that each contained mutually corroborative descriptions of
Zeigler's continuous fixation on his issues with Joseph.
- 17 - Last — but far from least — none of the three e-mails
(including Centofanti's) exudes the slightest whiff of personal
animus. All three e-mails indicated that the authors greeted
Zeigler cordially, and George went so far as to inform the human
resources department that she was eager to "help [Zeigler] in any
way."
To be sure, George noted Zeigler's statements about
suing Atrius; Fountaine recounted that Zeigler made "a comment
about his lawyer" and an "inappropriate" remark by Joseph;4 and
Centofanti mentioned Zeigler's assertion that he had filed a charge
against Atrius with the Massachusetts Commission Against
Discrimination (MCAD). But nothing in these e-mails suggests that
George, Fountaine, or Centofanti was bent on punishing Zeigler for
threatening to sue Atrius. The only concrete evidence in the
record — Dr. Rater's testimony that he considered the possibility
that at least George's e-mail might be tainted by personal
hostility but found any potential bias outweighed by the contents
of the e-mails and Zeigler's full medical record (which accord
with Dr. Rater's ultimate conclusion that Zeigler was unfit to
perform his essential duties) — cuts in Dr. Rater's favor. On
4 Although Fountaine stated in her deposition that Zeigler informed her of his plan to sue Joseph during their August 4 encounter, her e-mail did not communicate that point explicitly.
- 18 - this record, no reasonable factfinder could conclude that Dr. Rater
was reckless in giving credence to the coworker accounts.5
We likewise reject Zeigler's contention that a
reasonable factfinder could distill recklessness from Dr. Rater's
failure to conduct a third in-person mental status examination
before deeming Zeigler unfit to work. The record contains no
evidence that Atrius asked Dr. Rater to conduct another in-person
examination of Zeigler. Although Dr. Rater could perhaps have
sought permission to reevaluate Zeigler, a disagreement as to
whether Dr. Rater took the best possible course of action would
not make out a trialworthy issue about whether his statements were
published "without a reasonable basis for forming a belief in their
truth." Catrone v. Thoroughbred Racing Ass'ns of N. Am., 929 F.2d
881, 891 (1st Cir. 1991). Simply showing a deviation from best
practices, without more, does not suffice to ground a finding of
recklessness. Cf. Shore, 174 N.E.2d at 380 (explaining that
plaintiff must show more than "want of sound judgment" or "hasty
or mistaken action" to establish defendant's abuse of conditional
privilege (quoting Pecue v. West, 135 N.E. 515, 517 (N.Y. 1922))).
5 Of course, a defendant may act recklessly by publishing inaccurate statements about matters that are susceptible of precise verification (such as a bankruptcy or criminal record). See Shore, 174 N.E.2d at 381. Here, however, coworkers' impressions of their encounters with Zeigler were not verifiable matters capable of being confirmed by quick reference to external sources.
- 19 - Even if a jury could find Dr. Rater negligent for assessing
Zeigler's fitness for duty without conducting yet another in-
person mental status evaluation — and we do not suggest that such
a finding would be warranted — the SJC has left no doubt that mere
negligence does not destroy a conditional privilege. See Bratt,
467 N.E.2d at 131.
That ends this aspect of the matter. No reasonable
factfinder could conclude that Dr. Rater abused the conditional
privilege by way of recklessness because of his reliance on the
coworker e-mails, his failure to perform a third in-person mental
status examination, or any combination thereof.
2. Actual Malice. Zeigler's remaining attempt to escape
the confines of the conditional privilege — actual malice — fares
no better. In this context, actual malice occurs when "defamatory
words, although spoken on a privileged occasion, were not spoken
pursuant to the right and duty which created the privilege but
were spoken out of some base ulterior motive." Dexter's Hearthside
Rest., Inc. v. Whitehall Co., 508 N.E.2d 113, 117 (Mass. App. Ct.
1987); see Doane, 107 N.E. at 622. Such an ulterior motive may
take the shape of "a direct intention to injure another," Dragonas
v. Sch. Comm., 833 N.E.2d 679, 687 (Mass. App. Ct. 2005) (quoting
Bratt, 467 N.E.2d at 131), or an "intent to abuse the occasion
[giving rise to the privilege] by resorting to it 'as a pretence,'"
- 20 - id. (alteration in original) (quoting Ezekiel v. Jones Motor Co.,
372 N.E.2d 1281, 1287 (Mass. 1978)).
Evidence that a defendant simply disliked the plaintiff
or was partially motivated by personal animosity, without more, is
insufficient to establish actual malice. See id. at 688; see also
Sheehan, 93 N.E.2d at 530. If the publication was "made for the
purpose of protecting the interest in question, the fact that the
publication [was] inspired in part by resentment or indignation at
the supposed misconduct of the person defamed does not constitute
an abuse of privilege." Restatement (Second) of Torts § 603
cmt. a; see also Dragonas, 833 N.E.2d at 688. Rather, a defendant
cedes the protection of the conditional privilege through actual
malice only "if the publication [was] not made chiefly for the
purpose of furthering the interest which is entitled to
protection." Dragonas, 833 N.E.2d at 688 (emphasis in original)
(quoting Ezekiel, 372 N.E.2d at 1287 n.4).
Zeigler contends that a reasonable jury could find that
Dr. Rater deemed him unfit to work in order to punish him for
threatening suit against Dr. Rater and Scope. Although it is
undisputed that Dr. Rater knew about Zeigler's threat to sue for
malpractice at the time of the August report, Zeigler extrapolates
an entirely speculative theory of punitive animosity from this
meager kernel of evidence. To begin, the record is devoid of any
indication that Dr. Rater gave Zeigler's comments concerning
- 21 - litigation any weight in compiling the August report. So, too,
the record contains nothing suggesting that Dr. Rater harbored any
ill will toward Zeigler because of those remarks. Indeed, Dr.
Rater's recommendation in the August report was measured and bore
no indicia of animus: rather than recommending that Atrius
terminate Zeigler, Dr. Rater recommended only that Zeigler seek
reconsideration of his fitness for duty after three additional
months of counseling.
To cinch the matter, even were we to assume that Dr.
Rater harbored some antipathy toward Zeigler due to his mention of
a suit, it would not be enough for Zeigler to show that such
antipathy constituted merely a part of his motivation for authoring
the challenged statements. See id. The conditional privilege
would be lost only if the evidence could support a finding that
Dr. Rater's statements were "not made chiefly for the purpose of"
providing an honest assessment of Zeigler's fitness for duty (the
interest underlying the conditional privilege between Dr. Rater
and Atrius). Id. (emphasis in original) (quoting Ezekiel, 372
N.E.2d at 1287 n.4); see Catrone, 929 F.2d at 890; Restatement
(Second) of Torts § 603 cmt. a. Even when viewed in the light
most favorable to Zeigler, the record reveals no evidence that
would permit such a finding. Dr. Rater maintained in his
deposition that the focus of the August report was his evaluation
of Zeigler's mental state and ability to perform his duties, and
- 22 - Zeigler offers no evidence to contradict this testimony or
otherwise demonstrate a genuine dispute of material fact about Dr.
Rater's dominant motivation for disseminating the challenged
statements.
Generally speaking, actual malice may be inferred from
the parties' relationship and the circumstances surrounding the
publication. See Galvin, 168 N.E.2d at 266. Even so, courts are
not required to "draw unreasonable inferences or credit bald
assertions [or] empty conclusions" in adjudicating summary
judgment motions. Theriault v. Genesis HealthCare LLC, 890 F.3d
342, 348 (1st Cir. 2018) (alteration in original) (quoting Cabán
Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.
2007)). Here, Zeigler's rank speculation that Dr. Rater deemed
him unfit to work in order to punish him for the threat of
prospective litigation is insufficient to block Dr. Rater's quest
for summary judgment.
The short of it is that no reasonable factfinder could
conclude that Dr. Rater was motivated chiefly by retaliatory animus
when he declared Zeigler unfit to return to work in the August
report. Accordingly, Zeigler's claim of actual malice fails.
III. CONCLUSION
We need go no further. The district court correctly
found Dr. Rater's statements in the August report conditionally
privileged, and Zeigler has failed to summon sufficient evidence
- 23 - to establish any abuse of that privilege. We hold, therefore,
that the district court did not err in granting summary judgment
in Dr. Rater's favor.
Affirmed.
- 24 -