In Massachusetts, what is considered defamation?
Two unpublished cases out of the Massachusetts Appeals Court brought by the same plaintiff shed some light on the ins and outs of a defamation claim in Massachusetts.
As this comes up a lot with clients and prospective clients, particularly in the age of social media, I wanted to take a moment here to review what might be covered and might not be covered in a defamation claim. These two cases, one just out, provide a good opportunity to do that.
The first case
In the 2012 case, O'Brien v. Chretien, 82 Mass. App. Ct. 1117, 976 N.E.2d 214 (2012) (R. 1:28 Decision), a jury found that the defendant-employer defamed the plaintiff-employee and intentionally interfered with his prospective employment.
Why? The Appeals Court set out the facts:
In November of 2007, following a patient complaint, Berkshire Medical Center, Inc., (BMC) asked [plaintiff's employer American Medical Response (AMR)] "not to have [the plaintiff] come to [BMC] as a paramedic." There is no evidence, however, that a no trespass order ever issued against the plaintiff, or that the plaintiff's medical clearance was ever revoked. In late 2007, the plaintiff applied for a number of positions including one with the Westfield fire department. The defendant, an employee of BMC, was personally familiar with the plaintiff and spoke about him in reply to inquiries from potential employers. On January 25, 2008, the defendant met with William Phelon, the deputy chief of the Westfield fire department, who was doing a background check on the plaintiff. Ray Webb, the charge nurse at BMC's emergency room on the day of the meeting, was also present. The defendant answered Phelon's questions about the plaintiff.
As a result of the meeting, Phelon came to believe that BMC had issued a no trespass order against the plaintiff and that the plaintiff's medical control had been revoked. He gave the Westfield fire commission his notes of this meeting, which listed a no trespass order, and made clear to them at a subsequent meeting that the plaintiff was not permitted to be under the medical control of BMC. Although the plaintiff had a higher civil service score than the second candidate and there were no issues with his paramedic skills, the Westfield fire commission hired the second candidate for the open position.
So, to be clear, despite the defendant reportedly telling the deputy fire chief such, there was no evidence indicating that either a "no trespass" order had been issued against the plaintiff or that the plaintiff had lost his "medical control" or "medical clearance."
To determine if this conduct could be deemed 1) defamation or 2) intentional interference with prospective business relations, the jury would have reviewed the elements of proof for these two claims.
"To prove defamation, the plaintiff must establish that the defendant was at fault for the publication of 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." Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 437, 833 N.E.2d 679 (2005) (quotation omitted) (bold added).
Intentional interference with prospective business relations
To succeed on an intentional interference claim, a plaintiff has to show "that (1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Blackstone v. Cashman, 448 Mass. 255, 260, 860 N.E.2d 7 (2007). Improper means can include making defamatory statements. See Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658, 855 N.E.2d 1137 (2006).
The jury concluded that the defendant's false statements about the plaintiff, and the fire department's later decision not to hire the plaintiff, constituted defamation and intentional interference with prospective business relations. A Superior Court judge and the Mass Appeals Court also both refused to set aside the jury's verdict.
In other words, the plaintiff won.
The second case
The 2017 case, O'Brien v. Milano, 2017 Mass. App. Unpub. LEXIS 48 (Mass. App. Ct., Jan. 12, 2017) (R. 1:28 Decision), finds the same plaintiff bringing a defamation claim again. This time, however, he lost.
Why? Again, I'll go to the Appeals Court's summary of the facts:
In 2011, the plaintiff was hired as a paramedic by Action Ambulance Service (Action), which has an "Advanced Life Support Paramedic Affiliation Agreement" with BMC. Following the hire, Action's vice-president of operations, James Scolforo, was told by the vice-president of human resources at BMC, Arthur Milano, that the plaintiff's access to BMC was restricted due to past "disruptive and sexually inappropriate" behavior. Scolforo later received a letter from Milano regarding their conversation, which stated that the plaintiff was not allowed on the premises of BMC in his professional capacity. Action then terminated the plaintiff.
The plaintiff filed a complaint in Superior Court for defamation, intentional interference with an advantageous business relationship, respondeat superior, and negligent hiring and supervision. The Superior Court judge threw the case out, and the Mass. Appeals Court affirmed it just last month.
Why a different result here than in the first case?
In the instant matter, Milano's comments regarding the plaintiff's restricted access to BMC stemming from past "disruptive and sexually inappropriate" behavior were conditionally privileged. BMC and Action had a business relationship, and the plaintiff's professional ability to access BMC was directly related to that relationship.
The plaintiff argues that, if the statements were deemed privileged, they would constitute an abuse of privilege because they were reckless. We disagree. Conditional privilege is abused if the plaintiff proves "that the defendant published the defamatory information recklessly . . . with knowledge of its falsity or with reckless disregard for the truth." Foley v. Polaroid Corp., 400 Mass. 82, 95, 508 N.E.2d 72 (1987) (quotation omitted)....
To be clear, the statements published by Milano were recognized as truthful by the plaintiff himself. The record demonstrates that the statements in question furthered a business relationship between Action and BMC and were within the scope of the doctrine of conditional privilege.
(emphasis added; footnote omitted; paragraph breaks added).
In other words, in this second matter, the plaintiff agreed that Milano's statements were truthful. And they were related to his potential ability to perform work for Action at BMC. Downey v. Chutehall Constr., 86 Mass. App. Ct. 660, 666, 19 N.E.3d 470 (2014) (statements conditionally privileged if the publisher of the statement and the recipient have a common interest in the subject and the statement is reasonably calculated to further or protect that interest) (internal quotation omitted).
Conditional privilege can extend to an employee making "disparaging comments about the performance of an employee of another company with which the first has a business relationship in so far as the comments are relevant to that relationship." Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 133, 463 N.E.2d 1197 (1984). Thus, where the statements were conditionally privileged and not lost by abuse, there was no defamation.
The Appeals Court also affirmed the Superior Court's decision that 1) there was no improper motive or means in Milano's actions that is required for a claim for intentional interference with an advantageous business relationship; 2) there was no tortious conduct on Milano's part, so the respondeat superior claim also failed; and 3) there was no evidence to support the negligent hiring claim against BMC. Conclusion
As I often write here, facts matter. A good employment lawyer will dig endlessly into the facts because a slight change in facts can easily change the result. The above cases is a good example.
In both, the same plaintiff went and applied for new jobs. In both cases, he didn't get the job because someone seemingly spoke ill of him. In the first case, it was deemed defamation. In the second, it was not.
The reason for the differing legal conclusions turns on the facts -- what was said, by and to whom, and for what purpose. All of this came out in evidence, whether before the jury or the judges.
If you are unclear about a possible claim for defamation, it can help to speak with an employment lawyer about your options.
Doorways Employment Law is a virtual employment law practice, leveraging the power of technology to connect with clients in the most efficient, convenient and cost-effective way possible. It specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts, including in defamation, intentional interference with an advantageous business relationship, respondeat superior, and negligent hiring and supervision matters. Contact Doorways Employment Law for an employment law consultation.