Opinion
14-P-1827
02-29-2016
RUTH QUINN BERDELL v. BELLA WONG & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff Ruth Berdell appeals from a judgment that allowed the defendants' summary judgment motion and dismissed Berdell's claims. On appeal, she claims that it was error to allow summary judgment for the defendants where her claims were properly supported by the record. We affirm.
1. Intentional interference with advantageous business relations. Berdell claims that the judge misconstrued the meaning of "actual malice" and did not draw all necessary inferences in her favor. We disagree. "For a grant of summary judgment to be upheld, the moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case." Miller v. Mooney, 431 Mass. 57, 60 (2000). It was Berdell's burden to present sufficient evidence that "improper motive or means" drove the defendants' actions. Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). In the employment context, this improper motive or means requires actual, not merely implied, malice and "must rise to the level of personal hostility or ill-will." Id. at 783. See Blackstone v. Cashman, 448 Mass. 255, 269-270 (2007).
The bulk of Berdell's argument, and evidence of alleged intentional interference, stems from attenuated inferences drawn from her perceived chronology of events. See Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 555 (2003), quoting from Alba v. Sampson, 44 Mass. App. Ct. 311, 315 (1998) ("Proof by inference, however, will not succeed if the plaintiff can show nothing more than an adverse impact or a 'laundry list' of facts which may or may not indicate the defendant acted out of actual malice"). While Berdell maintains that the defendants demonstrated actual malice by scheming to "salvage" Wong's reputation by "savaging" hers, she relies on speculation in reaching that conclusion. See Alba, supra ("[A]n inference of malice must be based upon probabilities rather than mere possibilities"). Berdell argues that despite her previously stellar performance reviews, the defendants only expressed dissatisfaction with her, blamed her for the school's public financial issues, and placed her on administrative leave after Wong had announced her resignation and planned her own "graceful exit." While the timing may be suspect, Berdell does not support her inferences of what occurred between her positive performance reviews, Wong's resignation, and her eventual termination with sufficient evidence of actual malice.
Specifically, Berdell points to an e-mail between Wong and Littlefield wherein Wong suggests that she and Littlefield "mutually agreed" to tie Wong's resignation to "operations," which Berdell argues explicitly refers to her, and that Littlefield would support Wong's "graceful exit" from her superintendent position. Although Berdell's title had, at some point, been manager of financial operations, Wong only refers to Berdell once in the e-mail, stating "[Littlefield] only asked about [Berdell] because that seemed the only thing the rest of [school committee] was concerned about today." Furthermore, employees under Berdell's supervision, who held direct responsibility for the day-to-day management of the lunch program and its related controversy, were also part of "operations."
Throughout her deposition, Berdell merely cites her opinion as to why Wong terminated her. She explains that Wong was "looking for a scapegoat" to preserve her own reputation by suggesting the issues stemmed solely from "terrible school business administrat[ion]," and not her work as superintendent. When asked whether Wong had any personal malice against her, however, Berdell only replied that she didn't know. Berdell's accusations and opinions regarding her termination constitute guesswork rather than reasonable inferences concerning the nature of the motivation behind it.
Even if the record supports an inference that the defendants had some "mutual agreement" and discussed or considered Berdell's future in planning for Wong's exit, nothing suggests they devised a scheme born out of spite, hostility, or another malignant purpose. In fact, Berdell does not identify anything unrelated to work and the school district's legitimate business interests as a motivating factor for her termination. See Blackstone, supra (actual malice must be "unrelated to the legitimate corporate interest").
Berdell argues Wong's letter detailing the reasons provided for Berdell's termination are unsubstantiated and further suggest collaboration between the defendants to justify Berdell's termination for cause where neither defendant had expressed dissatisfaction with Berdell in previous performance reviews. However, because Berdell's accusation does not support a reasonable inference of actual malice, it does not add sufficient support to maintain her intentional interference claim.
Moreover, even if protecting Wong's reputation motivated the defendants to focus on Berdell as head of operations, and as the source of the school district's financial woes, personal or financial gain alone is not sufficient to demonstrate actual malice. See King v. Driscoll, 418 Mass. 576, 587 (1994). Although summary judgment is generally disfavored in resolving state of mind issues, "it is appropriate in tortious interference claims if the record contains insufficient facts tending to show actual malice." Alba, supra at 314. Because Berdell based her assertions of actual malice on speculation and mere possibility, summary judgment was appropriate.
We also note that, regardless of the defendants' rationale for, and role in, terminating the plaintiff, Berdell was an at-will employee subject to termination for any reason as long as it did not violate public policy. See King, supra at 582; Parker v. North Brookfield, 68 Mass. App. Ct. 235, 240-241 (2007).
2. Defamation. Berdell also claims the judge improperly allowed summary judgment for the defendants on her defamation claim. We disagree. In order to survive summary judgment, Berdell had to provide sufficient evidence that the defendants were at fault for publishing a false statement about her to a third party that "could damage her reputation in the community" and cause her economic loss, "or is actionable without proof of economic loss." Ravnikar v. Bogojavlensky, 438 Mass, 627, 629-630 (2003).
In asserting defamation by conduct, as Berdell does here, publication "may result from physical actions of a defendant, in the absence of written or spoken communication," with Berdell bearing the burden of proving that "a reasonable third person observing [the defendants'] conduct would have understood it to be defamatory." Phelan v. May Dept. Stores Co., 443 Mass. 52, 57-58 (2004). Berdell alleges that by publicly placing her on administrative leave after Wong's resignation, the defendants defamed her through conduct. In this instance, however, there is no physical act in the alleged "conduct" from which a third person could recognize a defamatory meaning. See id. at 58 ("chasing, grabbing, restraining, or searching [may convey] a clear and commonly understood meaning"). As such, Berdell's conduct-based defamation claim was properly dismissed on summary judgment.
Berdell's claim of defamation per se, based on the suggestion that Wong's resignation letter and the district placing her on leave implied that she had engaged in financial wrongdoing and committed a crime, is not properly before us. Because she raises this claim in this context for the first time on appeal, we need not consider it. See Milton v. Civil Serv. Commn., 365 Mass.368, 379 (1974). In any event, neither Wong's public resignation nor Berdell's administrative leave suggested that Berdell's actions were or may have been criminal. See Lynch v. Lyons, 303 Mass. 116, 118-119 (1939).
Berdell also maintains that Wong's resignation, which she ties in part to "ongoing public concern over school operational protocols," defamed her. We disagree. Whether Berdell considers Wong's resignation to be defamation by conduct, or the letter itself to be defamatory, neither withstands summary judgment. As with Berdell's other conduct-based claim, there is no physical action for publication, and therefore, no defamation. See Phelan, supra. Also, and as noted above, Berdell supervised those directly responsible for issues with operations as a whole. See note 2, supra. Berdell cites nothing in the record to support her claim that Wong's letter made a false statement or that anyone would understand or interpret Wong's resignation as defamatory towards Berdell. See Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989).
Furthermore, at oral argument, Berdell conceded that she has no evidence that the defendants commented to the media on her or her office's reported "sloppy accounting practices." Her arguments to nonetheless hold the defendants accountable are without merit. First, she claims that defamation need not rely on direct quotations. See Draghetti v. Chmielewski, 416 Mass. 808, 812-813 (1994). Although this is true, nothing in the summary judgment record suggests that the press quoted or even paraphrased the defendants. Berdell's assertion that the defendants spoke with the press is insufficient to attribute the otherwise anonymous comments to them. Second, Berdell contends that the defendants defamed her by not correcting statements made by parents or reported by the media regarding her work and reputation with respect to the controversy surrounding the district. The defendants, however, had no affirmative duty to correct these statements. Inaction does not constitute publication, nor do we consider this absence of action physical defamatory conduct. See Phelan, supra.
In fact, Berdell noted the media's possession of the districts' audit reports and their presence at school committee meetings where parents also spoke and commented on district issues, including those concerning Berdell.
In her deposition, Berdell stated that the defendants' failure to correct "the false information that was presented by parents at school committee meetings and not taking any action to correct the false information in the press . . . left the impression that all of these things that were written about [her] were true."
Third, Wong's alleged statements regarding Berdell's vacation pay are likewise not defamatory. Even if Berdell can properly attribute the statement that Wong could not account for Berdell's accrued vacation time prior to her time as superintendent, the comment is not "reasonably susceptible of a defamatory meaning." Phelan, supra at 56. Berdell provided no evidence that the impression or comments accusing her of "scamming the system" through her use of accrued vacation time originated from either defendant. The judge properly granted summary judgment to the defendants on Berdell's defamation claims.
Because the alleged defamation Berdell claimed was either not published or not defamatory, we need not consider arguments regarding Berdell's status as a public official. See Netherwood v. American Fedn. of State, County & Mun. Employees Local 1725, 53 Mass. App. Ct. 11, 17-18 (2001). Similarly, we decline to consider whether the defendants had or lost a conditional privilege protecting their alleged statements. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 630-631 (2012).
3. Civil conspiracy. Finally, Berdell claims that her civil conspiracy claim should not have been dismissed on summary judgment. We disagree. In order to establish a civil conspiracy, a plaintiff must show "a common design or an agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement." Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994). As discussed above, Berdell did not submit sufficient evidence to maintain either an intentional interference or defamation claim as the tort underlying the conspiracy. Therefore, the judge properly dismissed the civil conspiracy claim on summary judgment as well.
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.