THOMAS LOCKE v. WHDH TV INC (2013)

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANT'S MOTION FOR SUMMARY JUDGMENTINTRODUCTION

This action arises from a series of television and on-line reports published by the defendant, in October of 2009, regarding alleged theft by plaintiff Thomas Locke, an airline maintenance technician, from airplanes at Logan Airport.   Locke's complaint alleges defamation.   Before the Court is the defendant's motion for summary judgment.   For the reasons that will be explained, the motion will be allowed.

BACKGROUND

The evidentiary record before the Court, considered in the light most favorable to the plaintiff as the non-moving party, provides the following factual background.   As of September 2009, Locke was employed by U.S. Airways as a maintenance technician at Logan Airport.   On September 18, 2009, officers of the Massachusetts State Police stopped Locke in the parking lot outside the airplane hanger where he worked.¹  He was carrying a small cooler and a large plastic trash bag, which were later found to contain:  two packages of paper towels, two bottles of Starbuck's Frappuccino, eleven cans of beer, two cans of diet Coke, four magazines, seven sandwiches, eight bottles of hand soap, ten rolls of toilet paper, a bottle of wine, six bags of potato chips, five cookies, and a container of cookies.   The police brought Locke to headquarters, where he gave a voluntary statement, in which he acknowledged that the items did not belong to him.   The police report recites that Locke said:  “I screwed up, can you guys give me a break, I'll never do it again.   I'm going to lose my job over this.”   The report goes on to say that Locke “advised us that he has been stealing similar items for approximately on year.   Almost daily.”   The report does not place this latter statement in quotation marks, and does not identify the source of the word “stealing” as between Locke himself and the reporting officer;  Locke denies that he told police he had stolen in the past.

The police did not arrest Locke, but did apply for a criminal complaint on a charge of larceny of property under $250.   The East Boston Division of the Boston Municipal Court issued a summons, requiring Locke to appear for a hearing before a clerk-magistrate.   Exactly what happened at that hearing is somewhat unclear in the record;  what is clear is that the clerk-magistrate declined to issue a criminal complaint.²

As a result of the incident, MassPort revoked Locke's security badge, and Locke and U.S. Airways entered into a “Last Chance Agreement.”   The agreement, which Locke signed on September 23, 2009, recites that “Employee failed to adhere to Company policies and standards with respect to Theft of Company property.   As a result, the Company had just cause to terminate Employee for such conduct.”   In lieu of termination, Locke and U.S. Airways agreed to a disciplinary suspension from September 19 through October 16, 2009, with reinstatement contingent on “completion of any pre-employment steps required by law, Company policy, or the terms of this Agreement, including, if applicable, a security screening.”

Upon completion of the suspension, MassPort refused to reinstate Locke's security badge, preventing him from returning to work.   Locke appealed that decision to a MassPort hearing officer without success.   The hearing officer's decision, dated December 9, 2009, indicates that, “several days before this hearing, U.S. Air discharged Mr. Locke and withdrew its sponsorship of Mr. Locke's application” for reinstatement of his security badge.   As a result of that action by U.S. Airways, the hearing officer determined that Locke “does not have the requisite identifiable and justifiable need for an Airport Security Badge,” and “had no sponsor for his application for an Airport Security Badge.”   For that reason, the hearing officer determined that the appeal was moot, and dismissed it as such.³

Victoria Block, of WHDH, learned of the incident.⁴  WHDH published Block's story on the topic in an internet posting on November 4, 2009, and in television broadcasts on

November 4 and 5, 2009.   Among the three similar but slightly different versions were the following statements:  “A long time airline mechanic” was “accused of stealing from planes parked at Logan Airport.”  “Investigators say they were watching this guy and that the thefts have been happening for several weeks.”   Locke would “take things from planes that were parked overnight at the airport.”   Locke “was monitored for a few weeks prior to being caught.”  “State Police caught him red-handed at the end of one of his shifts ․ he was hauling a cooler and a trash bag full of stolen goods, including 10 beers, a bottle of wine, toilet paper, paper tower, chips and cookies.”   Locke “told police he'd been stealing for a year ․ pilfering from jets he had access to as a mechanic.   MassPort is now refusing to give him back his security badge, so the airline plans to transfer him to Philadelphia's airport instead.”  “Locke's case has been continued for six months.   If he stays out of trouble, the charges will be dismissed.”   The publications also included these comments of passers-by at the airport in response to inquiries from Block:  “If that can happen, what else ․ like bombs and those sort of things”;  it makes you wonder “how safe airports really are”;  “why would you transfer a thief from one place to another, so that he can steal something different?”

In October of 2011, Locke filed suit in federal court against U.S. Airways, claiming breach of contract and wrongful termination.   That case, as far as the present record discloses, is still pending.   In the course of discovery in that case, Locke gave deposition testimony to the effect that U.S. Airways mechanics, including himself, routinely took various items, including beers, from planes to the employee break room for consumption there, with acquiescence of airline supervisors.   No one ever said that conduct was either authorized or not authorized, but it was “common practice,” “other people did it, including management, and nobody said no”;  “I have done it, and other people have done it, with the blessing of the foremen because they ate the food.”   According to his testimony, however, the occasion when he was caught was the only time he ever took items outside the hangar.   US Airways managers testified that it would be a violation of company policy for any personnel to take anything from airplanes;  that all supervisors had been instructed to so inform all personnel;  and that notices to that effect were posted in employee break rooms.   Locke, in an affidavit submitted in response to the present motion, denies ever hearing any such instruction or seeing any such notice.

Locke filed this action against WHDH on January 27, 2012, and filed an amended complaint on April 11, 2012.   Both versions assert a single count of defamation.   Although the amended complaint quotes and paraphrases the publications at some length, and attaches transcripts of them, its allegations, like those of the original complaint, leave considerable room for doubt as to exactly what statements Locke alleges are false.   WHDH raised that issue in a motion to dismiss, contending that Locke had failed to allege facts sufficient to assert a plausible claim for relief, in that he had failed to allege that any specifically identified statement was false.   At argument on the motion to dismiss, on June 11, 2012, Locke's counsel clarified:  The falsehood, he contended, was in the use of the plural in reference to thefts from planes, in the phrases “on a daily basis,” “happening for several weeks,” and “for a year.”   The truth, he contended, was that he stole only once, on September 19, 2009, the occasion when the State Police caught him taking items outside the hangar.   Applying the standard applicable to a motion to dismiss, the Court denied the motion, concluding that “if the plaintiff is able to prove his contention that the publications were false in their assertions of repeated theft, a jury could properly find that the harm to the plaintiff's reputation from those assertions was substantially greater than would have flowed from an accurate account of a single acknowledged incident.”

WHDH now moves for summary judgment, relying primarily on Locke's acknowledgment in his deposition testimony that he, like others, repeatedly took items from planes for consumption in the employee break room.⁵  Locke's response, in substance, is that his repeated conduct did not amount to stealing, because it was common practice and U.S. Airways tolerated it.   Thus, he contends, WDHD's statements to the effect that he stole repeatedly were false.⁶

DISCUSSION

This Court grants summary judgment where the record establishes that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law.   See Mass. R. Civ. P. 56(c);  Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983);  Community National Bank v. Dawes, 369 Mass. 550, 553 (1976).   The moving party bears the burden of establishing that there is no dispute of material fact on every relevant issue.   See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).   A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial.   See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991);  Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

Once the moving party establishes the absence of a triable issue by either of these methods, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute.  Pederson, 404 Mass. at 17.   The opposing party may not rest on the allegations of the pleadings, or rely on “bare assertions and conclusions regarding [his] understandings, beliefs, and assumptions.”  Polaroid Corp. v. Rollins Environmental Services (NJ), Inc., 416 Mass. 684, 696 (1993);  Key Capital Corp. v. M & S Liquidating Corp., 27 Mass.App.Ct. 721, 728 (1989).   Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat a summary judgment motion.   See Madsen v. Erwin, 395 Mass. 715, 721 (1985).   The opposing party's obligation, rather, is to demonstrate the existence of admissible evidence sufficient to meet the burden of proof on the issues raised by the motion.   Summary judgment is “especially favored” in defamation cases, because trial of such a case may put an “unjustified and serious damper on freedom of expression” such that, even if a defendant is successful, the process itself may lead to “unnecessary and undesirable self-censorship.”   La Chance v. Boston Herald, 78 Mass.App.Ct. at 910–11 (2011);  citing Dulgarian v. Stone, 420 Mass. 843, 846 (1995).   See Philadelphia Newspapers v. Hepps, 475 U.S. 767, 777 (1986) (“chilling effect” of trial would be “antithetical to the First Amendment”).

To prevail on his claim in this case, Locke would have to prove that the statements he cites in WHDH's publications were both defamatory and false.   See Dulgarian v. Stone, 420 Mass. at 847, quoting Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381 (1988).   When a statement is substantially true, a minor inaccuracy will not support a defamation claim.   Reilly v. The Associated Press, 59 Mass.App.Ct. 764, 770 (2003).   Courts consider the allegedly defamatory report as a whole to determine whether the gist or tenor of the report was accurate.  Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991), quoting Heuer v. Kee, 79 P.2d 1063, 1064, 15 Cal.App.2d 710, 714 (1936) (minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified”);  Salvo v. Ottaway Newspapers, Inc., 57 Mass.App.Ct. 255, 262 (2003).   The Court considers the impact of the inaccuracy on the reader or listener, as compared to the impact of the truth.   See Jones v. Taibbi, 400 Mass. 786, 795–96 (1987) (where the impact of an inaccurate statement in a news report did not create a substantially greater defamatory sting than an accurate report would have, the report as a whole was not substantially inaccurate).

Here, Locke's own testimony establishes that on repeated occasions, over a lengthy period of time, he took items from airplanes for personal consumption.   With the one exception of the occasion when he was caught, he insists that his conduct did not amount to theft, because he took the items to the break room, rather than off the premises, others did the same, and U.S. Airways tolerated the practice.   Thus, the question on which the present motion depends is whether the difference between taking items off the premises, and taking them to the break room for consumption there, is such as to deprive the statements of substantial truth.   Put differently, the question is whether the impact of the reports as presented caused substantially greater harm to Locke's reputation than would have arisen from a report that on one occasion he took items off the premises, and on multiple other occasions he took them to the break room.

The Court concludes that the inaccuracy Locke cites is not sufficient to establish falsehood for purposes of a claim of defamation.   The essence of the conduct described in the reports, and that to which Locke has admitted, is the same, whether consumption occurred on or off the premises, and whether others (including supervisors) participated or not:  Locke took items that did not belong to him, in a setting where compliance with formally established security standards is of particular public importance.   In this regard, it is significant that WHDH's reports provided examples of the items police found in Locke's possession:  “10 beers, a bottle of wine, toilet paper, paper towels, chips and cookies.”   A viewer or reader would necessarily understand from this list that the scale of the conduct was small, and that the motive was likely personal consumption rather than any income-generating activity.   No reasonable jury, in the Court's view, could find that any inference that on previous occasions Locke took the items for personal consumption off the premises, rather than in the break room, would have made any difference in the effect on Locke's reputation.

At argument on the present motion, Locke asserted three other claimed inaccuracies in WHDH's publications:  that he had been “accused” of multiple thefts;  that the charge against him had been “continued for six months,” and that he faced “charges” at all.   Putting aside the question of whether the complaint adequately alleges falsehood in these statements, the Court concludes that the record does not establish a genuine issue of fact based on any of them.   The police report establishes that Locke was “accused” in its statement that Locke had admitted to stealing repeatedly.   Whether he actually made that admission or not is immaterial on the point;  the report says that he did, and thereby accuses him of the conduct it says he acknowledged.   As to the existence of “charges,” the distinction between a police officer applying for a criminal complaint, and a clerk-magistrate issuing one, while significant with respect to a criminal prosecution, is hardly sufficient to make the difference between substantial truth and falsehood for purposes of a defamation claim.   The assertion regarding a six month continuance, similarly, could not reasonably be found to alter the reputational effect of the report.⁷

CONCLUSION AND ORDER

For the reasons stated, Defendant's Motion for Summary Judgment is ALLOWED.

FOOTNOTES

FN1. The police report indicates that police were conducting surveillance of Locke as a result of reports received, through a “whistle blower” company under contract with U.S. Airways, regarding theft of items from airplanes..  FN1. The police report indicates that police were conducting surveillance of Locke as a result of reports received, through a “whistle blower” company under contract with U.S. Airways, regarding theft of items from airplanes.

FN2. The copy of the “Application for Criminal Complaint” form provided in the record indicates that the hearing was scheduled for October 29, 2009, but also includes this hand-written notation “Dismissed Oct 14,” with the word “Dismissed” appearing to be crossed out.   A decision of a MassPort hearing officer, dated December 9, 2009, on Locke's appeal from MassPort's denial of his application for reinstatement of his security badge, indicates that “the clerk magistrate deferred a decision on the application for six months at the end of which, if Mr. Locke was not the subject of any other criminal complaint applications (or presumably any other criminal process), the application in the instant matter would be denied.”   The hearing officer's decision does not identify the source of that information, but identifies the persons present at the hearing as Locke and the two State Police detectives, suggesting that the detectives provided the information regarding events at the hearing..  FN2. The copy of the “Application for Criminal Complaint” form provided in the record indicates that the hearing was scheduled for October 29, 2009, but also includes this hand-written notation “Dismissed Oct 14,” with the word “Dismissed” appearing to be crossed out.   A decision of a MassPort hearing officer, dated December 9, 2009, on Locke's appeal from MassPort's denial of his application for reinstatement of his security badge, indicates that “the clerk magistrate deferred a decision on the application for six months at the end of which, if Mr. Locke was not the subject of any other criminal complaint applications (or presumably any other criminal process), the application in the instant matter would be denied.”   The hearing officer's decision does not identify the source of that information, but identifies the persons present at the hearing as Locke and the two State Police detectives, suggesting that the detectives provided the information regarding events at the hearing.

FN3. The record leaves room for some confusion as to the precise circumstances of U.S. Airways's decision to terminate Locke's employment.   A letter to Locke dated November 13, 2009, from the Regional Director of Operations, informs Locke that “your employment is terminated effective immediately” because “you failed to obtain the required BOS Airport Identification Badge and failed to return to work on October 16, 2009.”   According to an affidavit Locke submitted in his action against U.S. Airways, at the suggestion of an airline manager Locke applied for a position in Philadelphia, which he received onNovember 5, 2009, prior to his discharge on November 13, 2009..  FN3. The record leaves room for some confusion as to the precise circumstances of U.S. Airways's decision to terminate Locke's employment.   A letter to Locke dated November 13, 2009, from the Regional Director of Operations, informs Locke that “your employment is terminated effective immediately” because “you failed to obtain the required BOS Airport Identification Badge and failed to return to work on October 16, 2009.”   According to an affidavit Locke submitted in his action against U.S. Airways, at the suggestion of an airline manager Locke applied for a position in Philadelphia, which he received onNovember 5, 2009, prior to his discharge on November 13, 2009.

FN4. Block has submitted an affidavit describing her source and her investigation.   Locke contends that he cannot respond to the assertions in her affidavit without having taken her deposition, although he has made no effort to do so in the eighteen months this case has been pending.   For present purposes, the Court does not rely on the assertions in Block's affidavit..  FN4. Block has submitted an affidavit describing her source and her investigation.   Locke contends that he cannot respond to the assertions in her affidavit without having taken her deposition, although he has made no effort to do so in the eighteen months this case has been pending.   For present purposes, the Court does not rely on the assertions in Block's affidavit.

FN5. WHDH also asserts a defense based on the “fair report” privilege, which protects reports of governmental activity;  WHDH characterizes its reports as describing activity of the State Police.   The Court will not reach this issue..  FN5. WHDH also asserts a defense based on the “fair report” privilege, which protects reports of governmental activity;  WHDH characterizes its reports as describing activity of the State Police.   The Court will not reach this issue.

FN6. As will be discussed further infra, Locke also asserts falsehood based on certain other claimed inaccuracies..  FN6. As will be discussed further infra, Locke also asserts falsehood based on certain other claimed inaccuracies.

FN7. Nor, the Court notes, has Locke offered evidence to show that the clerk-magistrate did not in fact stay the matter for six months before dismissing it.   The notation of “dismissed” on the application form, with a date that precedes the date scheduled for hearing, may generate confusion, but would not in itself suffice to prove falsehood..  FN7. Nor, the Court notes, has Locke offered evidence to show that the clerk-magistrate did not in fact stay the matter for six months before dismissing it.   The notation of “dismissed” on the application form, with a date that precedes the date scheduled for hearing, may generate confusion, but would not in itself suffice to prove falsehood.

Judith Fabricant Justice of the Superior Court