442 Mass. 64 | Mass. | 2004
Lead Opinion
Roy Albert White, a former employee of Blue Cross and Blue Shield of Massachusetts, Inc. (Blue Cross), commenced an action in the Superior Court seeking to hold Blue Cross hable for allegedly defamatory statements made to White while he was employed by Blue Cross and subsequently communicated by White to prospective employers. A Superior Court judge allowed Blue Cross’s motion to dismiss for failure to state a claim for which relief can be granted because White conceded that Blue Cross had not communicated the defama
1. Background. As alleged in his complaint,
On March 19, 2002, White was called to a meeting with Patrick Cuniff, Blue Cross’s director of human resources, and Allen Hinkle, its vice-president of innovation, quality, and cost. Hinkle informed White that a complaint had been received from Winchester Hospital to the effect that White, while in the presence of representatives from the other hospitals, had divulged the details of a confidential financial settlement between Blue Cross and Winchester Hospital. Hinkle told White he would be discharged immediately because of this conduct. White denied the accusation, and claims that he did not even know about any settlement between Blue Cross and Winchester Hospital, let alone divulge its details to anyone. Despite White’s request that Blue Cross investigate the matter further, Cuniff did not do so, allegedly acting on the advice of a lawyer.
White subsequently applied for numerous jobs in health care management, to no avail. This was predictable, he alleges, because most prospective employers inquired about his reason for leaving Blue Cross. Because he refused “to lie,” he was “compelled,” he says, to reveal that he was discharged “for allegedly disclosing confidential financial information.”
As noted earlier, White does not claim that Blue Cross com
2. Discussion. To prevail on a claim of defamation, a plaintiff must establish that the defendant was at fault for the publication of a false statement
Recognition of the doctrine of compelled self-publication defamation is far from unanimous. Some State courts of last resort have rejected it. See Gore v. Health-Tex, Inc., 567 So. 2d 1307, 1308-1309 (Ala. 1990); Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 226 (2004); Gonsalves v. Nissan Motor Corp. in Haw., 100 Haw. 149, 171-173 (2002); Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 571-574 (Tenn. 1999); Lunz v. Neuman, 48 Wash. 2d 26, 33 (1955).
White acknowledges that some appellate authority counsels against his argument, but invites us to adopt the doctrine of compelled self-publication where the employee claims that the employer knew or should have known that the defamatory statement was false. We conclude that, even in these circumstances, adoption of the doctrine is ill-advised. We recognize the conundrum faced by discharged employees who are required by prospective employers to explain the circumstances of their discharge. But as the leading authority on defamation has explained, compelled self-publication defamation in the employment context is “troubling conceptually.” 1 R.D. Sack, supra at 2-84. “It is the termination and the reasons for it, not the communication, about which the plaintiff is actually complaining . . . .” Id. at 2-85. Any harm arising from the employee’s discharge is more appropriately dealt with under principles of employment law, and not under the law of libel and slander. Id.
It is surely for that, among other reasons, that several courts have pointed to the doctrine’s unpredictable effect on at-will employment. See Cweklinsky v. Mobil Chem. Co., supra at 225-226; Gonsalves v. Nissan Motor Corp. in Haw., supra at 172.
White no doubt would counter that the harm he has suffered is occasioned not by his discharge, but by his failure to obtain alternative employment, an entirely foreseeable consequence, he argues, of Blue Cross’s failure to investigate the truthfulness of Winchester Hospital’s charge against him. But recognition of the doctrine of self-publication would run counter to another important aspect of employer-employee relations, an employer’s 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.” Bratt v. International Business Machs. Corp., 392 Mass. 508, 509 (1984). Communications between former and prospective employers concerning an employee are similarly privileged. See Burns v. Barry, 353 Mass. 115, 118-119 (1967). These privileges serve the important public purpose of promoting the free flow of information in the workplace, and are lost only when the employer recklessly makes “unnecessary, unreasonable or excessive” publications. Bratt v. International Business Machs. Corp., supra at 509, 515 n.11. There is no such claim here.
Recognition of the doctrine of compelled self-publication defamation brings with it the potential to stifle communication in the workplace. See Cweklinsky v. Mobil Chem. Co., supra at
Blue Cross was well within its rights to give White any reason, a false reason, or no reason at all for his termination. Cort v. Bristol-Myers Co., 385 Mass. 300, 305 (1982) (“an employer has no duty to give any reason at the time of discharging an employee at will”). But at-will employees, no less than others, benefit immensely from open communications concerning their performance, prospects for advancement, and related matters, even if discharge results.
White argues that the “compulsion” element of the doctrine, that White was actually compelled to communicate the false information and that such compulsion was foreseeable to Blue Cross, will curtail any explosion of defamation litigation. We are not so sanguine. It is all but inevitable that a discharged employee will be called on to explain the circumstances of his discharge to prospective employers. And discharged employees will inevitably feel compelled to describe negative performance
There are, in addition, pragmatic reasons why the doctrine should be rejected. The search for future employment may extend over a considerable period. Even a discharged employee who secures new employment may later move to a new position, and will be called on to explain once more the circumstances of an earlier discharge. If the discharged employee is free to commence an action any time he claims to be harmed from self-disclosure of the “defamation,” procedural rules, such as the statute of limitations become meaningless. See 1 R.D. Sack, supra at § 2.5.2, at 2-84 (compelled self-publication permits discharged employees “to control the manner and timing of the defamation as a litigation tactic” and “could also allow the plaintiffs effectively to void the statute of limitations”). As the dissent frankly notes, post at 73 n.1, the discharged employee may publish and republish the alleged defamatory statement “for the remainder of his professional life.”
We are mindful of the harm White may have suffered. The
Judgment affirmed.
The defamation doctrine at issue is variously called “compelled self-publication,” see, e.g., Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 212 (2004); “self-defamation,” see, e.g., Austin v. Inet Techs., Inc., 118 S.W.3d 491, 499 (Tex. Ct. App. 2003); “defamation by self-publication,” see, e.g., CIM Ins. Corp. v. Masamitsu, 74 F. Supp. 2d 975, 990 (D. Haw. 1999); and “forced republication,” see, e.g., Atkinson v. Stop-N-Go Foods, Inc., 83 Ohio App. 3d 132, 135 (1992).
We accept as true the allegations in the complaint, and such reasonable inferences as may be drawn from it in favor of the plaintiff. See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991).
The complaint included one count sounding in defamation, alleging a communication of the accusation by Cuniff to other members of the Blue Cross staff. Prior to this appeal, White filed a stipulation of dismissal of that count.
By statute, Massachusetts permits a plaintiff to recover for a truthful defamatory statement published in writing (or its equivalent) with actual malice, G. L. c. 231, § 92, except as confined by the requirements of the First Amendment to the United States Constitution. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 n.3 (2003); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 131-132 (1998).
Other States have rejected the doctrine by statute. For example, in Colorado, the doctrine was adopted by Churchey v. Adolph Coors Co., 759 P.2d 1336, 1343-1345 (Colo. 1988), but subsequently eliminated by statute. See Colo. Rev. Stat. Ann. § 13-25-125.5 (West 1997). See also Volm v. Legacy Health Sys., Inc., 237 F. Supp. 2d 1166 (D. Or. 2002) (noting that Or. Rev. Stat. § 30.178[2] [2003], adopted in 1997 in response to Downs v. Waremart, Inc., 324 Or. 307 [1996], precluded compelled self-defamation in employment context).
Contrary to the dissent, post at 74-75, illustrations to the Restatement (Second) of Torts § 577 comment m (1997) do not support dispensing with the long-established requirement that the defendant must publish the defamatory statement to a third party. The Restatement’s illustrations merely underscore that a defendant cannot invoke as a pretext defense that a defamatory letter was intended for the plaintiff alone where the defendant knows that the plaintiff, because he is blind, for example, must disclose it to a third party. See Restatement (Second) of Torts § 577 comment m, illustration 10. Here, White was fully aware of the statements he published to prospective employers. Unlike the illustrations, he was not required to republish the reason for his discharge because he did not understand it.
In Minnesota, the doctrine recognized in Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 886-887 (Minn. 1986), is limited by statutes that disallow compelled self-defamation claims in certain circumstances. See Minn. Stat. Ann. § 181.962(2) (West 1993) (barring self-defamation claims based on employee’s review of own personnel file); Minn. Stat. Ann. § 181. 933(2) (West 2004) (barring self-defamation claims based on employee’s request of reason for discharge in writing).
The doctrine arguably has been adopted in Alaska. See Odom v. Fairbanks Memorial Hosp., 999 P. 2d 123, 130-131 (Alaska 2000) (affirming dismissal of defamation claim by physician against hospital for reporting termination, as required by law, to national practitioner data bank); id. at 133-134 & n.1 (Fabe, J., concurring in part and dissenting in part) (noting that, although court’s opinion does not so state, remaining claims for defamation were based on theory of self-publication).
Miller v. Butler, 6 Cush. 71 (1850), is cited in Annot., Publication of Allegedly Defamatory Matter by Plaintiff (“Self-Publication”) as Sufficient to Support Defamation Action, 62 A.L.R.4th 616, 625-626 (1988), for the proposition that Massachusetts has accepted the doctrine of compelled self-defamation. The Miller case, however, did not involve self-publication. Only one Massachusetts appellate decision has cited Miller v. Butler, supra, for the proposition that it may support the claim of self-defamation, but only to question the “vitality” of compelled self-defamation in Massachusetts. O’Connell v. Bank of Boston, 37 Mass. App. Ct. 416, 422 n.3 (1994).
Defamatory statements that harm a plaintiff’s professional or business reputation are actionable without proof of economic loss. See Ravnikar v. Bogojavlensky, supra at 630.
The Massachusetts cases relied on by the dissent do not concern self-publication by a plaintiff of a defamatory statement. See post at 75-76, citing Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 347-348 (1943) (sufficient evidence for jury to find defendant liable where, as defendant anticipated, supervisor read letter from company addressed to plaintiff); Rumney v. Worthley, 186 Mass. 144, 145-146 (1904) (sufficient evidence for jury to find defendant liable where he had “good reason to believe” that plaintiff’s daughter, a clerk in his store, would open and read letters pertaining to business before delivering letter to plaintiff); Miller v. Butler, 6 Cush. 71, 74 (1850) (letter containing defamatory statements mailed by defendants to third person). Because in those cases there was evidence that the defendant knew
Dissenting Opinion
(dissenting). The court, citing public policy concerns, states that permitting compelled self-defamation to meet the “publication” element of defamation would be “ill advised.” Ante at 68. In my view, it is at least as ill advised to allow employers, by their own reckless actions or omissions, to put employees in situations such as the one confronted by the plaintiff. The defendant here, by allegedly reckless indifference, caused foreseeable harm to the plaintiff. The plaintiff claims that the defendant had no basis for believing the accusation that was made against him, and that the defendant refused to make any effort to resolve the matter by investigation or otherwise prior to terminating Ms employment. The court expresses numer
If we accept as true the allegations in the complaint, see Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991), the defendant received a false accusation from a customer, explicitly refused to investigate that accusation, repeated it to the plaintiff as the reason for firing him, and then suggested that the plaintiff lie about that reason during subsequent job interviews. The plaintiff then was faced with three equally untenable alternatives while interviewing with prospective employers. He could follow the defendant’s advice and lie, he could refuse to answer questions regarding his termination, or he could answer those questions openly, thereby republishing a defamatory statement. The first option, lying, is not an acceptable alternative to republication, see Carey v. Mt. Desert Island Hosp., 910 F. Supp. 7, 12 n.3 (D. Me. 1995), and the plaintiff should not be penalized for refusing to do so. The other two options, in the real-world context of the modem job market, are not practical because they will simply result in the plaintiff’s failing to find subsequent employment.
As the court acknowledges, the plaintiff’s claim makes out a prima facie case for defamation, except for the publication element. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). For at least fifty years, courts facing similar fact
Although the Restatement endorses self-defamation only where the plaintiff is “without an awareness” of the republished statement’s defamatory nature, Restatement (Second) of Torts § 577 comment m (1977), a careful reading of that section reveals that it is compatible with the concept of compelled self-defamation as presented in this case.
While this court has not previously considered the narrow question whether compelled self-defamation satisfies the “publication” element of defamation, the concept of holding the original utterer of a defamatory statement liable for foreseeable republications is established here. See Bander v. Metropolitan Life Ins. Co., 313 Mass 337, 347-348 (1943) (defamatory contents of sealed letter addressed to plaintiff could be considered published where defendant had “good reason to believe” letter would be opened and read by plaintiff’s manager); Rumney v. Worthley, 186 Mass. 144, 145 (1904) (defamatory letter addressed to plaintiff could constitute publication if defendant “had good reason to believe” that plaintiff’s
As to the court’s public policy rationale, permitting compelled self-defamation to meet the “publication” requirement of defamation is not incompatible with at-will employment. An employer is entitled to terminate an employee for any reason, or no reason, Cort v. Bristol-Myers Co., 385 Mass. 300, 305 (1982), provided public policy is not violated thereby. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). As the court points out, even giving a false reason does not violate public policy. Ante at 70. See Mello v. Stop & Shop Cos., 402 Mass. 555, 557 (1988), citing Cort v. Bristol-Myers Co., supra at 306. But a false reason and a defamatory reason are not the same thing. Nothing in the doctrine of at-will employment requires that an employer, in the context of discharging an employee, be permitted to speak knowingly or recklessly in a manner that defames the employee. Van-Go Transp. Co. v. New York City Bd. of Educ., 971 F. Supp. 90, 103 (E.D.N.Y. 1997), quoting Wright v. Guarinello, 165 Misc. 2d 720, 725 (N.Y. Sup. Ct. 1995) (“A
Moreover, the employer’s conditional privilege is not abrogated by, nor is it inconsistent with, recognition of the concept of compelled self-defamation. The two concepts manage to coexist in other jurisdictions. See, e.g., Herberholt v. dePaul Community Health Ctr., 625 S.W.2d 617, 624-625 (Mo. 1982) (accepting doctrine of compelled self-defamation [Overcast v. Billings Mut. Ins. Co., supra at 70] but dismissing plaintiff’s claim because of employer’s privilege). See Van-Go Transp. Co. v. New York City Bd. of Educ., supra at 105-106 (same). See also Booth v. Electronic Data Sys. Corp., supra at 1091 (same). In Massachusetts, an employer has a “conditional privilege to publish defamatory material if the publication is reasonably necessary to the protection or furtherance of a legitimate business interest.” Bratt v. International Business Machs. Corp., 392 Mass. 508, 512-513 (1984). This privilege is abused, and thus lost, when the employer utters a defamatory statement knowing it is not true, or with reckless disregard as to its truth. Id. at 514.
If Blue Cross had spoken directly with a prospective employer of White instead of to White himself, the employer’s conditional privilege would have applied unless Blue Cross spoke falsely intentionally or recklessly. Bratt v. International Business Machs. Corp., supra. See Burns v. Barry, 353 Mass. 115, 118-119 (1967). The present case is no different. If Blue Cross were only negligent when it initially uttered the statement in question, White would have no claim. However, if White can show that Blue Cross had knowledge of the statement’s falsity or acted with reckless disregard as to its truth, then Blue Cross would have abused and lost its privilege. Whether a conditional privilege is abused is a question for the jury, id. at 514, and thus in the present case the allegation of abuse ought to be left for another day. The court, however, prevents any further consideration of the matter by concluding that the mere existence of the employer’s conditional privilege prevents White from bringing his claim in the first place. By the court’s logic, the existence of any privilege would “run counter” to any defamation claim, whether it involves self-publication or otherwise. Ante at 69.
The court warns of the dangers of a culture of “self-censorship,” but a culture of unremedied libel and slander is no more desirable from a public policy standpoint, and no more consistent with the promotion of open communication. Ante at 70. The court can think of “nothing more harmful” to a
The court sympathetically announces that the plaintiff has remedies against the alleged originator of the defamatory remark, i.e., Winchester Hospital or its representative. However, in many self-defamation cases the defamatory statement originates with the employer, and a claim against some other party will not be available. See, e.g., McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 792 (1980); Colonial Stores Inc. v. Barrett, 73 Ga. App. 839, 840-841 (1946); Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 881 (Minn. (1986). The court understandably is concerned also that a plaintiff may distort an original oral statement while repeating it. Where the defamatory statement is expressed orally, the possibility of distortion is present, but this is simply a factual matter for resolution by the fact finder. These considerations do not persuade me that allowing a former employee to meet the “publication” element of defamation with his own forced repetition of the defendant’s statements is unwarranted.
This case presents an issue ultimately best left to the Legislature. However, in my view, compelled self-defamation is a doctrine grounded in well-recognized tort principles. It is a natural extension of Massachusetts case law, and there is no urgent or overwhelming public policy rationale counselling against it. Therefore, in the absence of legislative direction explicitly barring compelled self-defamation from satisfying the publication element in defamation claims, the plaintiff should be allowed to proceed with this action.
It has been suggested that the plaintiff simply can tell the truth and then dispute the defamatory remark by explaining its context. The idea that such an explanation would not often fatally harm the plaintiff’s job prospects, especially in a competitive employment market, is wholly contrary to common sense and misses the point. If a defamatory statement concerning the plaintiff is false, he should not be burdened with the task of explaining its context for the remainder of his professional life.
The court characterizes my citation to the Restatement as seeking to dispense with the “long-established” requirement that the defendant must publish the defamatory statement to a third party. Ante at 67 n.6. On the contrary, I cite Restatement (Second) of Torts § 577 comment m ,(1977) to demonstrate that this requirement is paired with a “long-established” exception, whereby the publication requirement of defamation may be met by the actions of the plaintiff. This exception, as the court recognizes, includes sitúa
The Restatement also contemplates that the original utterer of a defamatory statement may be responsible for foreseeable republications. See Restatement (Second) of Torts, supra at § 577 comment k (publication element of defamation can be met where “a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person”). See also id. at § 576 (“The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if . . . the repetition was reasonably to be expected”).
McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 796 (1980), also cited Wilcox v. Moon, 64 Vt. 450 (1892) (where sealed letter sent by defendant to plaintiff, publication element met if defendant knows plaintiff will need to have letter read by another). The Wilcox case was recently cited by Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755 (D. Vt. 1997), as support for the proposition that “publication may be established if the defendant knows that of necessity the plaintiff must disclose the statement.”
The court goes to great lengths to explain the facts of Bander v. Metropolitan Life Ins. Co., 313 Mass. 337 (1943); Rumney v. Worthley, 186 Mass. 144 (1904); and Miller v. Butler, 6 Cush. 71 (1850), and to assert that these cases did not involve compelled self-defamation. Ante at 71 n. 11.1 do not suggest that they did. I cite these cases merely to point out that one who utters a defamatory statement may be liable for the republication of that statement by another if such republication was foreseeable, and to demonstrate that concepts akin to compelled self-defamation are not unknown to Massachusetts jurisprudence.
In the context of employment, a defamatory remark uttered with knowledge of its falsity or with reckless disregard as to its truth is to be distinguished from a defamatory remark uttered with mere negligence, which is protected by the employer’s conditional privilege. See discussion infra. See Bratt v. International Business Machs. Corp., 392 Mass. 508, 513-515 (1984).
The court cites Bratt v. International Business Machs. Corp., supra at 509, 515 n.11, for the proposition that the employer’s conditional privilege is lost “only when the employer recklessly makes ‘unnecessary, unreasonable or excessive’ publications.” Ante at 69. That is a misstatement of the law. That case merely noted that “unnecessary, unreasonable or excessive publication” by itself, without proof of scienter, did not constitute an abuse of privilege.