59 Mass. App. Ct. 550 | Mass. App. Ct. | 2003
This is an appeal from judgments in favor of the defendant Cynthia Zadai dismissing claims for defamation, intentional interference with an advantageous relationship, and malicious prosecution, and in favor of the defendant Beth Israel Deaconess Medical Center (Beth Israel) in an action for breach of contract. As this appeal stems from the defendants’ motions for summary judgment, we “summarize the evidence most favorable to the plaintiff and resolve in [her] favor all reasonable inferences that could be drawn from that evidence.” Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 660 (1981) (citations omitted). We will affirm the judgments only if the plaintiff has “no reasonable expectation of proving an essential element” of her claim. McNamee v. Jenkins, 52 Mass. App. Ct. 503, 505 (2001).
For many years, Beth Israel employed Robin Sklar, the plaintiff, as an occupational therapist. In 1990, she resigned her position as chief of the occupational therapy department in favor of a position as a part-time senior occupational therapist.
Several years after the plaintiff made that choice, a patient complained to her that a bill the patient had received overstated the amount of time the plaintiff had spent treating her. In response to this complaint, the plaintiff asked her department’s billing manager what she should do. The billing manager told her to forward the complaint to him. The plaintiff then sent him an e-mail requesting that the bill be adjusted in a manner reflecting a reduced amount of time spent with the patient on seven occasions. When no adjustment had been made by the next billing cycle, the plaintiff suggested that the patient contact Anjana Patel, the acting chief of occupational therapy, to determine the status of the matter.
Patel met with the patient on November 11, 1994, and her notes indicate that, in addition to complaining about the amount of her bill, the patient also complained about the quality of the
Under Beth Israel policy, the patient’s complaint triggered a peer audit of the plaintiff’s treatment records to assess her professional practices. The audit, consisting of four separate components, was conducted by five Beth Israel employees. Zadai alone was responsible for one component and participated with two other employees in a second. The audit concluded that the plaintiff’s performance was inconsistent with professional expectations of a senior occupational therapist.
The plaintiff elected to appeal her dismissal through the process described in a Beth Israel employee handbook, rather than accept Zadai’s offer of a voluntary resignation. The appeals process consisted of a five-step review of the discharge decision involving three reviews by higher level managers ending with a hospital vice-president, then by a committee of employees, and lastly, the hospital president. At each step, the decision was upheld. The committee of employees that unanimously voted to uphold the dismissal was comprised of two members chosen by the plaintiff, two members chosen by the president of the hospital, and a fifth member chosen by the plaintiff from a predetermined panel of employees. A human resources division representative served as a neutral chairperson. The president’s decision is embodied in a letter to the plaintiff dated March 30, 1995.
On July 1, 1995, Zadai filed with the Board of Allied Health Professions (board) a complaint alleging violations by the plaintiff of professional standards. Zadai also notified the American Occupational Therapy Association (“AOTA”) of the results of the Beth Israel internal review of the plaintiff’s performance. The board later notified Zadai that it had closed the case for lack of evidence and cautioned her against filing frivolous complaints.
On April 26, 1996, the plaintiff filed suit in Superior Court, alleging that Zadai had intentionally interfered with her advanta
Dealing first with the plaintiffs claim of interference with an advantageous relationship, success requires proof that “(1) she had an advantageous employment relationship with her employer; (2) the defendant knowingly induced the employer to break that relationship; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the employee was harmed by the defendant’s actions.” Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). Where the defendant is a supervisor who, in the context of his or her employment, is privileged to interfere with the employee’s advantageous relationship, the plaintiff must show, for the purposes of the third element, that the improper motive or means rose to the level of “actual malice” and was the “controlling factor” in the defendant’s interference. Ibid.
The essence of the plaintiff’s argument is that her advocacy for a family-friendly workplace angered Zadai and generated her ill will towards the plaintiff. That ill will, in turn, motivated Zadai to fabricate the patient’s quality of care complaint and to conduct an inadequate investigation to justify dismissing the plaintiff. Working backwards, as she must, the plaintiff contends that because she can prove facts which support the inference that Zadai fabricated the complaint and intentionally conducted an inadequate investigation, it is reasonable to infer that, given the plaintiff’s advocacy for working parents, Zadai did so
First, there simply is no admissible evidence in the record that Zadai fabricated the patient complaint. As noted, the patient’s alleged denial to the licensing investigator that she made a complaint is totem-pole hearsay. See note 3, supra.
The plaintiff’s second claim is for malicious prosecution aris
Assuming that a claim for malicious prosecution can arise out of a report to an administrative agency, see Restatement (Second) of Torts § 680 (1977), and assuming that such a claim can arise out of a report that leaves the question whether to proceed to the recipient’s discretion, see Ziemba v. Fo’cs’le, Inc., 19 Mass. App. Ct. 484, 485-486, 488 (1985) (where defendant gives information to third party who in turn exercises discretion, defendant did not initiate the proceedings); Dobbs, Torts § 436 (2000), the plaintiff’s claim fails because she has failed to raise a genuine issue of material fact on the question of malice.
To raise a genuine issue of material fact on the question of malice, the plaintiff must come forward with some evidence that would permit a fact finder to conclude that Zadai (1) knew there was no probable cause, and (2) acted with an improper motive, Beecy v. Pucciarelli, 387 Mass. at 593-594; Foley v. Polaroid Corp., 400 Mass. 82, 100-101 (1987), i.e., acted “primarily for a purpose other than that of properly adjudicating” the claim. G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). See Restatement (Second) of Torts § 674. More specifically, the plaintiff must show that Zadai was “attempting to achieve an unlawful end or a lawful end through unlawful means,” or intended to harass, vex, or annoy her. Beecy v. Pucciarelli, supra at 594 n.9. Wanton or negligent behavior is insufficient without some evidence of an ulterior purpose. See id. at 594; O’Connell v. Bank of Boston, 37 Mass. App. Ct. 416, 420 (1994).
For the reasons listed earlier, the record does not give rise to
The third claim against Zadai, this one for defamation, fails for essentially the same reason. This claim arises out of the same circumstances that produced the claim for malicious prosecution, i.e., Zadai’s transmission of the audit report to the licensing authorities. But, in this Commonwealth, a publisher is conditionally privileged to publish defamatory material if he or she is a supervisor, executive, or a corporate officer and the information “is reasonably related to the employer’s legitimate business interest,” Foley v. Polaroid Corp., 400 Mass. at 95, or if the publisher and the recipient share a common interest “and the communication is of a kind reasonably calculated to protect or further it.” Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950), quoting from Prosser, Torts, at 837-838. Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 513 n.8 (1984). The conditional privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively. See Retailers Commercial Agency, Inc., petitioner, 342 Mass. 515, 522 (1961); Bratt v. International Bus. Machs. Corp., supra at 514-515 & n.ll; Foley v. Polaroid Corp., supra at 95; Mulgrew v. Taunton, 410 Mass. 631, 636 (1991). The undisputed facts show that Zadai’s publication is covered by the conditional privilege and the record simply does not produce a genuine issue of material fact on the issue of recklessness.
The plaintiff’s final claim asserts that Beth Israel’s employee handbook and appeals policy created an employment contract, the terms of which were breached when Beth Israel failed to
Even if the handbook were a contract, see O’Brien v. New England Tel. & Tel. Co., 422 Mass. at 692, the provisions dealing with appeals essentially set up a mechanism for addressing managerial decisions that an employee “feels [are] personally unfair or unjust.” The first three levels of review are designed to achieve, if possible, a consensual resolution to whatever problem the employee is addressing. The fourth level of review involves the appeals hearing committee and has greater structure than the first three levels. The appeals hearing committee’s function, however, remains highly discretionary. The procedures state the following:
“The Appeals Hearing Committee does not set Hospital policy. Its responsibility is to decide whether the decision about which the employee is appealing was within Hospital policy, whether the immediate manager’s use of judgment in interpreting Hospital policy was satisfactory, whether it was based on sufficient information at the time it was arrived at, and whether it appears that the manager gave the information adequate attention at the time. The Committee is also to take into consideration what the employee is appealing for and whether that is reasonable, in the light of their decision about the problem appealed. As full an explanation as practical of the reasoning and judgment behind the decision is to be conveyed as well.
“The decision of the Appeals Hearing Committee is not binding. Rather, [the committee] serves in an advisory capacity, to the appealing employee and involved managers and, in addition, to the President.”
If the employee is not satisfied with the appeals hearing committee’s response to the problem, the employee may appeal to the president of the hospital, whose decision alone is “final and
From that outline, it is evident that the appeals process does not change the at-will status of employees such as the plaintiff, and the plaintiff makes no claim to the contrary.
Judgments affirmed.
The plaintiff maintains that Patel never subscribed under oath to the content of the notes. The record reflects, however, that Zadai used those notes as a basis for beginning the inquiry that preceded the plaintiff’s dismissal. The issue, therefore, is whether Zadai reasonably used those notes as a basis for beginning an inquiry. The plaintiff offers nothing to rebut the appropriateness of her doing so.
The plaintiff claims that Zadai fabricated the contents of her conversation with the patient and that the patient in fact denied “making any complaint” about her. As a basis for her assertion on that score, however, the plaintiff relies on what circumstantially appear to be unsworn, unauthenticated, working notes of an investigator for the Board of the Allied Health Professions, the licensing agency for physical and occupational therapists that reflected what the patient told him. Even in the absence of a motion to strike, a judge is perfectly free to exercise his discretion in favor of ignoring that kind of totem-pole hearsay. See Madsen v. Erwin, 395 Mass. 715, 721 (1985). See also note 8, infra. Moreover, to the extent that the notes say that the patient denied making “any” complaint, they contradict the plaintiff’s own deposition testimony.
The plaintiff maintains that the audit was improperly carried out, relied on inaccurate and incomplete records, and that Zadai was incompetent to perform the tasks she undertook in connection with the audit. The plaintiff offers no evidence to support those contentions. More important, in relation to the claims she has asserted against Zadai, the plaintiff offers nothing to suggest that Zadai kne\v or believed either that she, herself, was incompetent, or that the peer review process was somehow defective. The plaintiff does agree that her documentation in the patient’s medical record was incomplete. She also agrees that she was alerted to similar deficiencies in other records when she received her 1992 performance review.
The termination letter Zadai gave to the plaintiff, in addition to reciting the audit results and other details surrounding the sequelae to the patient’s complaint, stated that, when Zadai asked the plaintiff why it would be appropriate to reduce the patient’s bill in such a way that it no longer matched the plaintiff’s medical chart, the plaintiff responded by saying that she “should have changed the chart to match the bill.” Given the multitude of reasons why it is essential for health care providers to maintain accurate medical records, see, e.g., G. L. c. Ill, § 70; G. L. c. 112, § 12CC, it is noteworthy that the plaintiff does not contest the accuracy of that component of Zadai’s letter.
In United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 814-816 (1990), the Supreme Judicial Court abandoned any requirement that the defendant act “with malice” in a claim for intentional interference and held that the lawfulness of the conduct would be measured by whether it was “improper” in motive or means. As is evident in our discussion, infra, an exception is made when the complaint names an individual official of the plaintiff s employer. See Weber v. Community Teamwork, Inc., 434 Mass. at 781.
Although the plaintiff here had received a nomination for an employee award at Beth Israel and positive performance reviews, there had been “trouble on the job.” In November of 1994, Zadai and the plaintiff had a meeting in which Zadai strongly criticized eight aspects of the plaintiff’s job performance and stated that she would be terminated unless she prepared a plan of corrective action within two weeks. The plaintiff responded with a letter stating that all of the criticisms were false and baseless. The denouement of that exchange does not appear in the record.
The plaintiff’s reliance on the “official record” exception to the hearsay rule is misplaced. That exception does not apply to “second level hearsay,” such as the patient’s statement to the board’s investigator. See Kelly v. O’Neil, 1 Mass. App. Ct. 313, 318-319 (1973); Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928, 929-930 (1983). Nor is the business record exception available, because the patient was under no business obligation to report anything to the investigator. See Wingate v. Emery Air Freight Corp., 385 Mass. 402,, 406 (1982).
Even establishing the requisite malice on Zadai’s part would not end the difficulties with the plaintiff’s interference claim because, given the several layers of review in which the dismissal was upheld, it is hard to see any causal connection between Zadai’s alleged malice and the final discharge
Given the result we reach, we have no occasion to consider Zadai’s assertion that the plaintiff’s claims of defamation and malicious prosecution are barred by the anti-SLAPP statute, G. L. c. 231, § 59H.
The appeals policy states that employees can terminate the process at any time, and the plaintiff asserts that she was not given the option to do so. But the plaintiff never sought termination of the process, pure and simple. Instead, she sought to terminate the process and substitute a resignation for her involuntary dismissal. The appeals policy did not provide her with that right of substitution and neither did the president.
Accordingly, the plaintiff remained subject to dismissal for good reason, bad reason, or no reason at all. See Upton v. JWP Businessland, 425 Mass. 756, 757 (1997).