Opinion
Civil Action No. 00-11947-PBS
May 16, 2002
ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants have filed a motion for summary judgment, which plaintiff opposes. After hearing, the Court DENIES the motion on all counts. The defamation claim (Count VII), with respect to which certain important caveats apply, is discussed below.
DISCUSSION
Dr. Krolikowski asserts that Dr. Smith, Chairman of the Radiology Department of the University of Massachusetts Memorial Medical Center, defamed her by prohibiting her from reading mammograms. This act, she argues, created the impression among her peers and colleagues that she had serious performance problems.
In construing Massachusetts law, several courts have held that conduct may constitute a statement for purposes of a defamation claim. See Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 520 (1st Cir. 1990) (holding that for purposes of a defamation claim, "a communication [is] defined as conduct that brings an idea to the perception of others"); Jimenez Nieves v. United States, 682 F.2d 1, 6 (1st Cir. 1982) (pointing out that even an activity can count as "communication" if that activity communicates an idea to a third party"); Simas v. First Citizens' Fed. Credit Union, 63 F. Supp.2d 110, 116 (D.Mass. 1999) (holding that "an individual's actions, separate from any written or spoken statements, may be sufficient grounds for a jury to find a cause of action [for defamation]"); Petsch-Schmid v. Boston Edison Co., 914 F. Supp. 697, 706 (D.Mass. 1996) (holding that where a supervisor raised his voice to an employee while escorting her out of the building following a suspension, "it is possible that the escort may have been conducted in such a manner as to communicate a defamatory statement to other employees about the plaintiff"). See also Restatement (Second) of Torts, § 563 cmt. a (1977) ("The meaning of the matter communicated, whether by written or spoken words or otherwise. . . ." (emphasis added)).
Defendants argue, however, that the claim against Dr. Smith for defamation is barred by the conditional supervisory privilege. "An employer has a conditional privilege to disclose defamatory information concerning an employee when the disclosure is reasonably necessary to serve the employers' legitimate interest in the fitness of an employee to perform his or her job." Bratt v. IBM Corp., 392 Mass. 508, 512-513 (1984).
Once an employer's conditional privilege has been established, the burden shifts to the employee to prove that the privilege was abused. See Foley v. Polaroid Corp., 400 Mass. 82, 94, 508 N.E.2d 72, 79 (1987). In particular, the employee must show that the employer published the statements "recklessly, that is, they were unnecessary, unreasonable, or excessively published," Foley, 400 Mass. at 95, 508 N.E.2d at 79, or that defamatory information was published "with actual malice." See Catrone v. Thoroughbred Racing Assocs. of N. Am., Inc., 929 F.2d 881, 889 (1st Cir. 1991). See also McCone v. New England Tel. Tel. Co., 393 Mass. 231, 236, 471 N.E.2d 47, 51 (1984) (upholding trial court's dismissal of plaintiff's action for defamation where plaintiffs "alleged no facts at all to prove that such publication [to supervisor and others] was made recklessly"). "Summary judgment is inappropriate if a jury reasonably could [find] that [the employer] demonstrated actual malice by clear and convincing evidence." Catrone, 929 F.2d at 889. See also Elicier v. Toys "R" Us, Inc., 130 F. Supp.2d 307, 310 (D.Mass. 2001) (same).
Dr. Smith asserts supervisory privilege as grounds for summary judgment on Dr. Krolikowski's defamation claim against him. It is undisputed that during a study designed to test the accuracy of digital mammography in 1999, Dr. Krolikowski misread mammograms at twice the rate of other radiologists participating in the study. Specifically, she missed nearly two out of three cancers on conventional film screens and nearly 3 out of 4 on digital exams. The director of the study communicated his concern about Dr. Krolikowski's competence to Dr. D'Orsi, Dr. Smith's vice chair. Dr. Smith asserts that this is the reason that Dr. D'Orsi, with his approval, prohibited Dr. Krolikowski from reading mammograms in May 1999, and also ordered an outside review of the 59 mammograms she had read in the previous year.
Dr. Krolikowski, meanwhile, contends that Dr. Smith prohibited her from reading mammograms in retaliation for her complaints of gender-based salary inequities, which began in 1991 and continued through 1999. She also provided evidence that the outside review of her mammograms, conducted in November, 1999, detected "no disasters." (Casey Affidavit, Exhibit G). She emphasizes that Dr. Smith did not restore her right to review mammograms even after her apparent exoneration by the outside reviewers.
I find that Dr. Krolikowski has not carried her burden of showing that Dr. Smith's initial decision to bar Dr. Krolikowski from reading mammograms — in the wake of the 1999 study that revealed her high rate of misreadings — was reckless or excessive. The record shows that this decision was "reasonably necessary to serve the employers' legitimate interest in the fitness of an employee to perform his or her job." Bratt, 392 Mass. at 512-13. Therefore, any inference that was motivated by a desire for retaliation against Dr. Krolikowski because of her prior complaints about pay inequity is too weak to overcome the supervisory privilege.
Nevertheless, there is still a genuine issue of material fact as to whether Dr. Smith's decision not to restore Dr. Krolikowski's mammography privileges, after the outside review detected no serious problems, was reckless or motivated by actual malice. Accordingly, Dr. Smith is not entitled to summary judgment on the defamation claim with respect to his failure to restore Dr. Krolikowski's mammogram-reading privileges after November, 1999.
ORDER
The Court DENIES defendants' Motion for Summary Judgment (Docket No. 36) on all counts. The defamation claim (Count VII) is subject to those limitations set forth above.