United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
Alan Zeigler brings this libel action against Defendant
Michael Rater, M.D. (“Dr. Rater”). Zeigler alleges
that Dr. Rater made false statements in fitness-for-duty
evaluations of Zeigler and supplied those statements to
Zeigler's employer, Atrius Health, Inc.,
(“Atrius”). Before the court is Dr. Rater's
Motion for Summary Judgment [#102]. Because Dr.
Rater's statements were protected by a conditional
privilege, Dr. Rater's motion is ALLOWED.
regular component of his psychiatry practice, Dr. Rater
performs employee fitness- for-duty evaluations through
employer referrals provided by Scope Medical, LLC
(“Scope Medical”). Def. Rater's Mot. Summ. J.
[“Rater Mot. Summ. J.”] Ex. 5 [“Rater
Dep.”] 48:2-49:14 [#103-5]. In June 2015, Dr. Rater
received such a referral to evaluate whether Zeigler was fit
to return to his job as an information technology
professional at Atrius. Id. at 48:2-5.
to his report, Dr. Rater prepared for his evaluation by
reviewing materials including Atrius's job description
for Zeigler's position and records from Zeigler's
primary care physician. Rater Mot. Summ. J. Ex. 8 at 8
[“June Report”] [#103-8]. Dr. Rater also reviewed
an email from Atrius's Benefits Department that described
Atrius's reasons for requesting the evaluation. Rater
Dep. 118:5-17. Dr. Rater conducted Zeigler's in-person
evaluation on June 11, 2015. At the outset, Dr. Rater
explained that he had been asked to conduct the
fitness-for-duty examination on behalf of Atrius. Rater Mot.
Summ. J. Ex. 9 [“Zeigler Dep. Vol. II”] 112:22-25
[#103-9]. Zeigler confirmed that he understood that the
examination was not confidential, and that Dr. Rater would
report his conclusions to Atrius. Id. at 113:3-7.
26, 2015, Dr. Rater generated a report (“June
Report”), which he sent to Atrius. Id. The
nine-page report included a narrative description of
Zeigler's work history, as relayed by Zeigler; a
description of Zeigler's physical symptoms, psychological
symptoms, medical history, and medications; and Dr.
Rater's summary of his review of Zeigler's medical
records. Id. at 1-7. The report concluded that
Zeigler was not yet fit to return to work. Id.
July 2015, upon learning that Zeigler had engaged the
services of a mental health professional, Atrius requested a
second fitness-for-duty evaluation of Zeigler to determine
whether this counseling qualified Zeigler to return to his
prior position. Rater Mot. Summ. J. Ex. 10 [“Scope
Medical Physician's Letter”] [#103-10]. Scope
Medical again assigned the evaluation to Dr. Rater and
instructed him to report his conclusions verbally immediately
after the meeting. Id. Dr. Rater conducted a second
in-person examination of Zeigler on July 30, 2015. Zeigler
Dep. Vol. II 126:16-22. Zeigler understood that Dr. Rater was
acting in the same capacity as he was for the first
examination and would forward his report to Atrius.
Id. at 128:15-25. Afterward, Dr. Rater verbally
reported to Scope Medical that Zeigler was fit to return to
work, and Scope Medical forwarded this conclusion to Atrius.
Rater Dep. 248:6-10.
Dr. Rater could complete his written report of Zeigler's
second examination, Dr. Rater received a call from an
employee at Scope Medical stating that Zeigler unsuccessfully
attempted to return to work on August 4, 2015. Rater Dep.
262:20-263:3. Through Scope Medical, Atrius forwarded to Dr.
Rater three emails from Atrius employees giving their
accounts of the events occurring upon Zeigler's return.
Id. at 269:10-14.
August 10, 2015, Dr. Rater generated a second written report
(“August Report”), in which he evaluated
Zeigler's fitness for duty in light of both the second
in-person evaluation as well as the materials Atrius supplied
regarding Zeigler's return to work. See August
Report 8. The August Report contained much of the same
medical and employment background information as the June
Report. In the “Summary and Conclusions” section,
Dr. Rater wrote that Zeigler was not able to perform the
management, coordination, and teamwork functions required by
his job. Id. at 7. Dr. Rater concluded that Zeigler
was not fit to return to work at the time. Id.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “A ‘genuine' issue is one that could
be resolved in favor of either party, and a ‘material
fact' is one that has the potential of affecting the
outcome of the case.” Calero-Cerezo v. U.S.
Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986)). The initial burden is on Dr. Rater, as
the moving party, to show “an absence of evidence to
support the nonmoving party's case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). If Dr. Rater
meets this burden, the burden shifts to Zeigler, as the
nonmoving party, to “adduce specific facts showing that
a trier of fact reasonably could find in his favor.”
Murray v. Warren Pumps, LLC, 821 F.3d 77, 83 (1st
Cir. 2016) (citing Anderson, 477 U.S. at 249-50).
brings this libel claim against Dr. Rater based on statements
in the “Summary and Conclusions” section of the
August Report. Under Massachusetts law, libel is a
written defamatory statement. See Draghetti v.
Chmielewski, 626 N.E.2d 862, 866 n.4 (Mass.
1994). To prevail on a defamation claim, a
plaintiff must “establish that the defendant was at
fault for the publication of a false statement regarding the
plaintiff, capable of damaging the plaintiff's reputation
in the community, which either caused economic loss or is
actionable without proof of economic loss.” White
v. Blue Cross & Blue Shield of Mass., Inc., 809
N.E.2d 1034, 1036 (Mass. 2004) (citing Ravnikar v.
Bogojavlensky, 782 N.E.2d 508 (Mass. 2003)). Yet even
assuming Dr. Rater's statements in his August Report
satisfied the elements of a libel claim, an individual
possesses a conditional privilege to publish defamatory
material so long as “the publication is reasonably
necessary to the protection or furtherance of a legitimate
business interest.” Bratt v. Int'l Bus. Machs.
Corp., 467 N.E.2d 126, 131 (Mass. 1984).
law provides that “[a]n employer has a conditional
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.” Id.
at 129. This includes “disclosures by employers of
defamatory medical information concerning employees which is
relevant to the employees' fitness to perform their
work.” Id. at 133. In Bratt, the
Supreme Judicial Court cited extensively to a case holding
that a Navy psychiatrist's statements evaluating a Navy
employee's fitness for duty were privileged. Id.
(citing Hoesl v. United States, 451 F.Supp. 1170,
1179 (N.D. Cal. 1978)). Here, of course, Dr. Rater was not
Atrius's employee. But Atrius, acting through the
intermediary Scope Medical, hired Dr. Rater to evaluate
Zeigler's fitness for duty. The statements underlying
Zeigler's libel claim were all in furtherance of Dr.
Rater's task, as assigned by and performed for Atrius, of