CHAVES v. TOWN OF WESTPORT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After the defendant Michelle Fredericks provided information to the Rhode Island Department of Education (RIDE) concerning the plaintiff's removal as a substitute teacher from the Westport public school system, the plaintiff brought suit alleging (1) libel (against Fredericks individually and in her official capacity), (2) intentional interference with advantageous relations (against Fredericks individually and in her official capacity), and (3) negligence (against the town). At issue in this appeal is whether the motion judge correctly granted summary judgment in favor of Fredericks on the libel claim and in favor of the town on the negligence claim.² We affirm.

1. Conditional privilege for libel. The plaintiff acknowledges that his libel claim against Fredericks is subject to a conditional privilege for “[s]tatements made by public officials while performing their official duties.” Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). See Foley v. Polaroid Corp., 400 Mass. 82, 94 (1987) (employers have conditional privilege “to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job” [citation omitted] ). However, he argues that the summary judgment record contained sufficient disputed facts to raise a triable issue that the privilege was abused.

A conditional privilege may “be lost if the defendant abuses it. The burden of proving abuse of the privilege is on the plaintiff.” Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 438 (2005). The conditional privilege is abused if a defendant “acted with actual malice or ․ there is ‘unnecessary, unreasonable or excessive publication,’ and the plaintiff establishes that the defendant published the defamatory information recklessly” (citations omitted). Mulgrew, 410 Mass. at 634. As this court has previously stated, a defendant may abuse and lose a conditional privilege “if the plaintiff offers proof that the defendant (1) acted out of malice, (2) knew the information was false, (3) had no reason to believe the information to be true, (4) acted in reckless disregard of the truth or the defendant's rights, or (5) published the information unnecessarily, unreasonably, or excessively.” Downey v. Chutehall Constr., Ltd., 86 Mass. App. Ct. 660, 667 (2014). The plaintiff acknowledges that there is no evidence that Fredericks acted out of malice, see Dragonas, supra (malice occurs when words “spoken out of some base ulterior motive” [citation omitted] ), that she knew the information was false, or that her one-time publication to RIDE was unnecessary or excessive, see Bratt v. International Business Machs. Corp., 392 Mass. 508, 513 (1984) (loud and repeated public accusations). Instead, he contends that she acted in reckless disregard of the truth by failing to adequately investigate or verify the truth of the statements before she published them.

Taken in the light most favorable to the plaintiff as the nonmoving party, see Dzung Duy Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 448 (2018), the facts in the summary judgment record were as follows. The plaintiff began working as a substitute teacher in the Westport public school system during the 2012-2013 school year. He worked about 101 school days during that year, and 6.5 days during the following school year. In December 2012, the plaintiff was removed from the high school substitute teacher list at the request of the high school principal. The following month, January 2013, the plaintiff was removed from the middle school substitute teacher list, this time at the request of the middle school principal. Approximately nine months later, on October 10, 2013, the plaintiff was removed from the elementary school substitute teacher list at the request of the elementary school principal. All three written requests were devoid of any suggestion that the plaintiff was suspected of being drunk or of alcohol consumption; instead, they pointed to his mismanagement of the classroom, his teaching without a lesson plan, his revelation of confidential disciplinary information to a student, and his disrespectful and inappropriate behavior. On all three occasions, the Westport superintendent of schools (superintendent) allowed the request that the plaintiff be removed from the substitute teacher list.

Three days before the last of these incidents, the plaintiff applied to become a substitute teacher in the RIDE system. Because he failed to provide his criminal history,³ his application was “red-flagged,” and the director of RIDE interviewed him about his criminal history. The director also contacted Fredericks, who was the executive assistant of human resources for the Westport public school system, seeking additional information about the plaintiff's employment there, and specifically inquiring about his eligibility for nonrenewal or nonhire. The director of RIDE cited licensing regulations that she claimed required educational institutions to reveal any issues or cause for an employee to not be eligible for reemployment.

Fredericks did not recall the plaintiff, and had had little interaction with him. In response to the RIDE director's request, Fredericks checked the plaintiff's personnel and other school records. She also consulted multiple times with the superintendent, who had been responsible for removing the plaintiff from the substitute teacher lists, for guidance with respect to responding to RIDE. On one of these occasions, the superintendent told Fredericks that the plaintiff was suspected of drunken behavior. The superintendent's secretary informed Fredericks that the plaintiff had failed to appear for a meeting with the superintendent to discuss the allegations. Thereafter, Fredericks sent a letter to RIDE falsely stating that the plaintiff “was removed for suspicions of drunken behavior,” and he “did not attend a meeting with the previous [s]uperintendent ․ to discuss the allegations.”⁴ ,⁵ Before sending this letter, Fredericks had it reviewed by the new superintendent and the interim business manager.⁶

On this record, the plaintiff has failed to raise a triable issue of fact that Fredericks abused the conditional privilege by acting recklessly. “Recklessness is a difficult standard to meet. [R]eckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. Rather, the defendant's conduct is measured by what the defendant had reason to believe. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” (quotations and citations omitted). Downey, 86 Mass. App. Ct. at 667. Negligence is not enough. See id.; Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 631 (2012) (“recklessness is the minimum degree of misconduct required to forfeit a conditional privilege”).

Here, although Fredericks did not have personal knowledge of the information in the letter to RIDE, she obtained the information from a source she was entitled to rely on: the superintendent, who made the decision to remove the plaintiff from the substitute teacher list. In the absence of contrary knowledge or information, Fredericks was not reckless when she accepted and transmitted the superintendent's explanation for his decision to remove the plaintiff.

2. General Laws c. 258, § 10 (c), immunity. The plaintiff's negligence claim is based on the allegation that the town's negligence in training and supervising Fredericks resulted in her publishing the false and defamatory statements discussed above. Although styled as a claim for negligent training and supervision in the complaint, there is nothing in the summary judgment record pertaining to Fredericks's training or supervision. Instead, it is clear that the negligence claim rests on the identical facts and theory as the libel claim against Fredericks and, therefore, arises from it. Thus, the claim falls squarely within the immunity provided under G. L. c. 258, § 10 (c), for “any claim arising out of an intentional tort, including ․ libel.”

For these reasons, we affirm the judgment.

So ordered.

FOOTNOTES

2.   The plaintiff makes no argument concerning his intentional interference claim.

3.   That history included charges of driving under the influence of alcohol (in 2004), and assault and battery (1989).

4.   Like the motion judge below, we accept for purposes of our decision that these statements were defamatory because the statements could “discredit[ ] the plaintiff in the minds of any considerable and respectable segment of the community” (quotation and citation omitted). Draghetti v. Chmielewski, 416 Mass. 808, 811 (1994).

5.   The letter also stated that the plaintiff made inappropriate comments to staff and students, allegedly refused to follow lesson plans, turned students away during a tutorial period, and that his classroom was reported on several occasions to be out of control. The plaintiff does not claim these statements were false.

6.   After receiving Fredericks's letter, RIDE denied the plaintiff's application because he failed to disclose his criminal history on his application and because of his “removal from the substitute teacher list at the Westport, Massachusetts Community Schools for unsuitable and nonprofessional behavior and actions in September/October of 2013.” Although the plaintiff does not contest the fact that his failure to disclose his criminal history could itself serve as the basis for RIDE's decision to disqualify him, he argues that the fact that the decision was made after RIDE received Fredericks's letter suggests that the letter was the basis for the disqualification.