Lawless v. Estrella

• Decision Date: 10 December 2020
• Docket Number: No. 19-P-1278,19-P-1278
• Citation: 99 Mass.App.Ct. 16,160 N.E.3d 1253
• Parties: Diane LAWLESS v. Cheryl ESTRELLA.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 16

160 N.E.3d 1253

Diane LAWLESS

v.Cheryl ESTRELLA.

No. 19-P-1278

Appeals Court of Massachusetts, Bristol..

Argued June 9, 2020.

Decided December 10, 2020.

Chip Muller for the plaintiff.

John M. Wilusz, Boston, for the defendant.

Present: Sullivan, Blake, & Ditkoff, JJ.

DITKOFF, J.

The plaintiff, Diane Lawless, a former municipal employee, appeals from the entry of summary judgment in favor of a former subordinate, the defendant, Cheryl Estrella, on the plaintiff's claim of defamation. We conclude that an opinion based on disclosed, nondefamatory facts is not defamatory and that many of the allegedly defamatory statements constitute such opinions. Further concluding that an employee has a conditional privilege to provide information concerning another employee upon the request of a supervisor and that the plaintiff failed to raise a genuine issue of material fact that would allow a jury to find that this privilege was abused regarding the other statements, we affirm.

1. Background. In June 2013, the board of selectmen of the town of Freetown (board) hired the plaintiff as the town's "Treasurer/Tax Collector" (treasurer). The plaintiff served in this position for two years, until June 2015, at which time she was terminated for cause.¹ The defendant worked as the senior clerk in the treasurer's office under the plaintiff's supervision beginning in August 2013 until December 2014, when she transferred to the town clerk's office.

On March 24, 2015, several months after the defendant's transfer, the plaintiff was involved in an altercation with the new senior clerk (the defendant's replacement), that caused the new senior clerk to become upset, and to seek the assistance of the town administrator. The matter was brought to the attention of the board, and the plaintiff was subsequently placed on paid administrative leave pending the outcome of a review of this and other past incidents.

Shortly thereafter, a selectman who was chair of the board's personnel committee called the town's employees together and requested that they provide written statements regarding their experiences working with the plaintiff. The selectman solicited the feedback of the employees to get a "feel for exactly what was going on in the workplace." She specifically asked them for an honest account of how they were treated by the plaintiff, "good, bad or indifferent." The defendant, the new senior clerk, and the assistant tax collector complied with the request.

The new senior clerk described the plaintiff as having an "uncontrollable temper," and treating her in an unprofessional, hostile, and intimidating manner. The assistant tax collector similarly described an unpleasant work environment that was extremely stressful and anxiety provoking.

The defendant drafted a detailed, six-page e-mail, and sent it to the selectman, the town administrator, and the board's administrative assistant, on April 3, 2015 (e-mail). In deposition testimony, the defendant stated that she submitted her written statement specifically in response to the selectman's request.

In the e-mail, the defendant shared her observations of the plaintiff's job performance, stating that the plaintiff spent significant time "socializing on the phone ... and shopping online," and would frequently disparage the town, its residents, and colleagues. She described the plaintiff as "creating an uncomfortable, abusive and hostile work environment," and as being "belligerent, threatening, overbearing and [engaging in] psychological harassment." She further portrayed the plaintiff as someone who acted abrasively and rudely, and suggested the plaintiff may have engaged in dereliction of her duties, if not unlawful conduct.

The plaintiff, on the other hand, paints a substantially different picture of her job performance. She states that, as the town's treasurer, she inherited an ineffective staff, had to assume her position without adequate training, and hired and trained the defendant as a senior clerk shortly after her own arrival. With respect specifically to the defendant, the plaintiff states that the defendant disliked being directed to work, and soon began feeding negative information about the plaintiff to the board, information which the plaintiff maintains was biased and self-serving.

After the board solicited the employees' feedback, and held a three-day hearing that included testimony from witnesses and other evidence (including the defendant's e-mail), the plaintiff was terminated.² The board found that the plaintiff was impolite to employees and vendors, failed to turn over passwords after being placed on leave, misled the board, admitted to downloading employee and taxpayer information after being placed on leave, went into the office after being placed on leave, and neglected to provide pension information to the town's insurance agency.

The plaintiff filed this action on the same day as her termination, containing one count of libel per se against the defendant based on the e-mail.³ The defendant subsequently filed a motion for summary judgment. A judge of the Superior Court granted the defendant summary judgment and dismissed the complaint. This appeal followed.

2. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). "We review a grant of summary judgment de novo." Blake v. Hometown Am. Communities, Inc., 486 Mass. 268, 272, 158 N.E.3d 18 (2020), quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799, 985 N.E.2d 1187 (2013).

3. Defamation. a. Generally. To prevail on a claim for defamation, a plaintiff must establish that (1) the defendant published a defamatory statement of and concerning the plaintiff; (2) the statement was a false statement of fact (as opposed to opinion); (3) the defendant was at fault for making the statement, and any privilege that may have attached to the statement was abused; and (4) the plaintiff suffered damages as a result, or the statement was of the type that is actionable without proof of economic loss. Downey v. Chutehall Constr. Co., 86 Mass. App. Ct. 660, 663, 19 N.E.3d 470 (2014). We view the evidence here in the light most favorable to the plaintiff as the nonmoving party. Id. at 662-663, 19 N.E.3d 470.

"A statement that is claimed to be defamatory must reasonably be understood either as a statement of actual fact, or one that implies defamatory facts.... Statements that are merely ‘rhetorical hyperbole,’ or which express a ‘subjective view,’ are not statements of actual fact" (citations and footnote omitted). Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 53, 152 N.E.3d 126 (2020). "[W]hen a statement is substantially true, a minor inaccuracy will not support a defamation claim." Reilly v. Associated Press, 59 Mass. App. Ct. 764, 770, 797 N.E.2d 1204 (2003).

The defendant included in her e-mail to town officials certain statements about the plaintiff's work habits and personal qualities that reflected poorly on the plaintiff. The plaintiff identifies in her complaint the following six allegedly defamatory statements:⁴

(1) "[A]ll I could hear all day was Ms. Lawless socializing on the phone all day long, and shopping online for ‘beads’ for her jewelry making business."

(2) "I believe Ms[.] Lawless demonstrates paranoid behavior and has serous mood swings that could be associated as severe bipolar disorder or some other form of mental handicap."⁵

(3) The plaintiff "made mention many times on how she remodeled one of her offices at another city/town and couldn't wait to ‘paint our office with dollar signs.’ She also made mention that she had bullet proof glass installed when she was a collector but that we wouldn't be getting that in Freetown[, and] that's why she moved her desk around the corner so we ( [the assistant town collector and] myself) would ‘be the first ones in the line of fire.’ "

(4) "[I]t has crossed my mind and the mind of some of my other coworkers that Ms[.] Lawless will show up at Town Hall with that gun her husband bought her."

(5) "I witnessed Ms. Lawless retrieve the Workers Compensation Binder off the top of the filing cabinet, that [the board's administrative assistant] had left with her, per her request a few days earlier, and put it in her briefcase bag. She had often taken materials home with her but this time I felt very uneasy because I thought there might have been insurance quotes in that binder, and seeing that her husband was an insurance salesman, to me there was a conflict of interest or an ethics violation."

(6) "[I]n March 2014, Ms. Lawless had somehow been able to take pretty much the whole month off –- without putting in for sick/vacation time."

The motion judge found that none of these statements were actionable as defamation either because the defendant was protected by a conditional privilege or because the statement constituted an opinion. We agree.

b. Opinion. Statements of pure opinion are not actionable. See King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281 and 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988). "The determination whether a statement is a factual assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion." Id. at 709, 512 N.E.2d 241, quoting Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733, 500 N.E.2d 794 (1986).

The motion judge concluded that the defendant's statement -- concerning her belief that the plaintiff suffered from "paranoid behavior" and "serious mood swings" that could be indicative of "severe bipolar disorder or some other form of mental handicap" -- was unambiguously a statement of opinion, and not fact, and was therefore not actionable. We agree.

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