939 F.3d 385 (1st Cir. 2019), 18-2150, Zeigler v. Rater

Docket Nº:18-2150
Citation:939 F.3d 385
Opinion Judge:SELYA, Circuit Judge.
Party Name:Alan ZEIGLER, Plaintiff, Appellant, v. Michael RATER, Defendant, Appellee.
Attorney:Chip Muller, with whom Muller Law, LLC, Providence, RI, was on brief, for appellant. Rebecca G. Capozzi, with whom Robert L. Bouley and McCarthy, Bouley, Barry & Morgan, P.C., Cambridge, MA, were on brief, for appellee.
Judge Panel:Before Lynch, Selya, and Barron, Circuit Judges.
Case Date:October 01, 2019
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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939 F.3d 385 (1st Cir. 2019)

Alan ZEIGLER, Plaintiff, Appellant,


Michael RATER, Defendant, Appellee.

No. 18-2150

United States Court of Appeals, First Circuit

October 1, 2019

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Chip Muller, with whom Muller Law, LLC, Providence, RI, was on brief, for appellant.

Rebecca G. Capozzi, with whom Robert L. Bouley and McCarthy, Bouley, Barry & Morgan, P.C., Cambridge, MA, were on brief, for appellee.

Before Lynch, Selya, and Barron, Circuit Judges.


SELYA, Circuit Judge.

This case is a defamation case, brought against a psychiatrist who disseminated an allegedly libelous report to an employer about an employee’s fitness to return to work after a period of medical leave. Whether particular speech is actionable as defamation sometimes depends on the role of the speaker, and so it is here. The challenged speech was published under a conditional privilege. We conclude that no reasonable jury could find that the defendant abused this privilege. Accordingly, we affirm the district court’s entry of summary judgment in favor of the defendant.


We briefly rehearse the facts and travel of the case, viewing the events in the light most hospitable to the nonmoving party (here, the plaintiff). See Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Plaintiff-appellant Alan Zeigler began working as an information technology professional at Atrius Health, Inc. (Atrius) in 2005. In January of 2015, Zeigler began reporting to a new supervisor, Christopher Joseph. Zeigler — who was then in his mid-fifties — contends that Joseph consistently made derogatory remarks about his age. The stress purportedly caused by these remarks culminated in a panic attack, prompting Zeigler to take medical leave in April of 2015.

Prior to his expected return that June, Zeigler spoke by telephone with an Atrius human resources representative. During this exchange, Zeigler stated that he had become so angry with Joseph (before his panic attack) that Joseph "might have got[ten] hurt" had "it been somebody else who had not had the skills to keep [their anger] under control." The human resources department subsequently required Zeigler to undergo a psychiatric evaluation to determine his fitness to return to work.

Atrius enlisted defendant-appellee Dr. Michael Rater to perform this task, following a referral from Scope Medical, LLC (Scope). Dr. Rater was no stranger to such assignments: he supplements his practice

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by performing fitness-for-duty evaluations for employers through referrals from intermediaries such as Scope. The purpose of a fitness-for-duty evaluation is to assess whether an employee can perform his job without posing a safety risk to other workers or himself.

In preparing to evaluate Zeigler’s ability to return to work, Dr. Rater received and reviewed certain documents supplied by Atrius, including medical records from Zeigler’s primary care physician. These records contained notations to the effect that Zeigler was "stressed and angry" and "[h]aving difficulty with [his] new director." Dr. Rater conducted an in-person examination of Zeigler on June 11, 2015 for one hour.

In a written report issued on June 26 (the June report), Dr. Rater concluded "to a reasonable degree of medical certainty" that Zeigler had "learned no new skills or techniques to manage his anger and agitation symptoms" and thus was unfit "to return to his same employment under the same manager." Dr. Rater recommended that Zeigler consult weekly with a mental health provider to develop anger management skills.

Zeigler began seeing Ivy Marwil, a licensed social worker, for regular therapy sessions. After three such sessions, Marwil reported to Dr. Rater that she saw no indication that Zeigler had or would ever act on his anger at work. She added that, in her opinion, Zeigler was ready to return to work at Atrius. At Atrius’s behest, Zeigler again saw Dr. Rater on July 30, 2015. Zeigler told Dr. Rater that he had acquired valuable anger management skills in therapy and that he felt positive about the prospect of returning to work. Based on his in-person evaluation and his review of Marwil’s letter, Dr. Rater told Scope (in a verbal report on July 30, 2015) that Zeigler was fit to return to work.

On August 4, Zeigler returned to the workplace. Within a few hours of Zeigler’s arrival, two coworkers — Jean George and Alida Fountaine — reported unsettling interactions with Zeigler to Adam Centofanti, an Atrius human resources representative. George served as Director of Health Information Management and Site Administrator, and Fountaine served as the Manager of IT Client Services. George and Fountaine first reported their encounters with Zeigler to Centofanti verbally and, at Centofanti’s request, followed up with e-mails.

At 10:59 a.m., George e-mailed the following message to Centofanti: With today being Alan Zeigler’s first day back into the office, as the Site Administrator I went over to welcome him back. My conversation with Alan had been rather un-nerving given his comments regarding Chris Joseph, and everyone at Atrius. He kept mentioning how he is "suing" and that Atrius wouldn’t allow him to come back to work in June. He also mentioned how Chris Joseph stated he was "too old for his role[.]"

Alan referenced numerous organizations that he has filed claims with, and one in particular that he felt the physician that diagnosed him as being aggressive "is being sued for [m]alpractice, I think Atrius told him to say that[.]" He clearly is agitated and I’m concerned with his ability to control his emotions. I kept trying to tell him, it’s great to have him back and that it’s a new start, but he really is just negative and stated "I won’t be here long with all the law suits I have[.]"

Is there a transition plan available for staff returning from an FMLA for both the staff member and the staff that directly report to them?

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Happy to help him in any way I can, Jean

At 12:07 p.m., Fountaine sent the following e-mail to Centofanti: Alan Zeigler stopped by my office this morning around 10:00 or so .... I’m not sure if he was venting, but it was a strange one-sided conversation.

It was the first time I had seen him in a long time - I said ‘hi Alan, nice to see you. It’s been a while!’ Alan agreed, and then added ‘I was ready to come back in June but was not allowed to. I used all of my accrued time and then ‘they’ realized they had to let me come back[.]’ He continued to talk about issues with Chris Joseph. He stated that his last day in the office, he had a meeting with Chris J. and HR and he was so angry that he left right after the meeting and could not recall driving home .... He had to go to the hospital, his EKG was abnormal, he had a panic attack .... He stated that Chris J told him that he was older and should consider a different career, then commented that he had been doing this for 10 years and he knew how to perform his job. He stated that he was told he needed anger management. He stated his wife contacted someone to advise Alan had the flu, and then they started receiving harassing emails.

He spoke about other specifics as well, but I don’t remember the details - at one point I started to block him out because he was going on for about 10 minutes and I had no frame of reference so I couldn’t follow him. I just kept saying ‘I’m sorry Alan, hope everything works out[.]’

He did make a comment about his lawyer - indicating that Chris J had made a comment that was inappropriate.

I thought it was bizarre - it felt strange. This was the first time I had seen him in months, and he immediately started spitting out details about incidents that had allegedly transpired while he was out ... which I had not been involved with so I couldn’t even grasp the information. It was definitely weird. I tried to be positive, change the subject ... no luck.

After receiving these accounts, Centofanti met with Zeigler and informed Zeigler that coworkers had reported uncomfortable interactions with him.1 Centofanti placed Zeigler on paid administrative leave, and security personnel escorted him from the building, collecting his access card and keys.

Kirk Hager, the Director of Field HR Operations and Employee and Physician Relations...

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