MARTINEZ v. NEW ENGLAND MEDICAL CENTER HOSPITALS

307 F.Supp.2d 257 (2004) | Cited 3 times | D. Massachusetts | March 3, 2004

MEMORANDUM

Plaintiff Teresa Martinez ("Martinez") initiated this action againstDefendant New England Medical Center Hospitals, Inc. ("NEMCH"), allegingviolations of federal and state law for retaliatory discharge,termination in violation of public policy, invasion of privacy,intentional interference, and defamation.

Defendant's motion for summary judgment is now before this court.

Background

NEMCH established an International Patient Center ("IPC") in or around1996.1 The IPC was designed to attract "international patientscapable of paying full price for medical care."2 Martinez beganworking as an employee in the IPC in or around August, 1997.3 Her jobPage 2responsibilities included "financial and registration coordination . . .for international patients."4 Part of Martinez's job was"making sure the patients she [was] coordinating . . .[were]financially able to pay."5

According to NEMCH's written policies, the regular order of ensuringpayment is to first provide an initial estimate to the patient, which thepatient must pay for up front.6 The actual charges are thendelineated on an invoice after the services have been provided. IPCcoordinators are authorized to provide up to a twenty-percent discount"from the total gross charges without specific approval from [NEMCH'sChief Financial Officer (`CFO')]."7

Martinez understood NEMCH's policy required the IPC "to obtain 50% or100% of the estimated cost on a case-by-case basis."8 And, she knewthat "if there were `less than 80% in the door prior to the procedure[,]'she would have to go see the CFO of the Hospital."9 Martinez alsorecognized that any discount in excess of twenty percent had to beapproved by the CFO.10 NEMCH claims that Martinez was terminated as aresult of her failure to abide by these regulations.Page 3

In the spring of 2001, Martinez was acting as the patient liaison foran Ecuadoran patient in need of a bone-marrow transplant.11 Theprocedure was estimated to cost $330,000.12 Martinez faxed thatestimate to either the patient or the patient's cousin.13

The patient was scheduled to start chemotherapy on April 23, 2001, butby April 11, 2001, Martinez had received only a $5,000 deposit for thetreatment14. When asked by the bone marrow transplant coordinator ifthe patient was "all set" for the procedure, Martinez answered, "[i]f thequestion is if she is all set with the cost of the estimate[, the answer]is no."15 Martinez, however, did not notify her supervisor, WendyLeong-Lum ("Leong-Lum"), or NEMCH's CFO about the situation.16

A week before the patient was to undergo treatment, her familythreatened to go to the press and say that she was denied care becauseshe was unable to pay.17 NEMCH's Chief Operating Officer ("COO"), Dr.Miller (the physician who was to perform the transplant) and thehospital's public affairs person went to see Martinez to find out thefacts surrounding this patient. Martinez relayed to them the following:The patient, or her cousin, told Martinez that she had collected $25,000,"had somebody who was going to give $50,000" and "had undertakenPage 4fundraising initiatives."18 Martinez responded that the patient"would have to provide [her] with the $75,000, a letter of intent offundraising and that Martinez would take it from there."19 Thepatient, or the cousin, then inquired about the possibility of a greaterdiscount, to which Martinez answered that "only if the doctor offerssomething in addition to [the] 20%[,] will the Hospital consider[it,]. . . and . . . it[']s up to you if you want to speak to thephysician."20 Martinez then met with the patient, or her family, anddiscussed the possibility of her "approaching the physician directlyabout waiving his fees."21 At some point during these discussions,the patient's cousin said to Martinez, "I mean, who has $330,000 togive."22

After Dr. Miller learned what had happened, he was "outraged" becausethe hospital could not "stop treatment now."23 Leong-Lum later toldMartinez that NEMCH's management was extremely upset about thesituation.24 On April 23, 2001, Leong-Lum made written notes abouther communications concerning the incident for her file.25 Inaddition, NEMCH's Vice President of General Services, James Carmody("Carmody"), sent an email to the ChiefPage 5Executive Officer and the C00 explaining that: Theresa was not authorized to advise the patient as she did. The fact that she did this is very concerning. This is not the first time she has acted outside of her authority and she (in the past) has been at least verbally reprimanded. I think this is particularly egregious and may require HR intervention including the consideration of termination.26

In addition to Martinez's failure to abide by company policy, NEMCHalso asserts that Martinez was fired for repeated tardiness. On June 29,2000, Martinez had been placed on a Corrective Action Plan ("CAP") toaddress her tardiness issues.27 She was placed on another CAP onAugust 7, 2000. The August CAP noted that since the June CAP, Martinezhad "come in at least 10 minutes late on several occasions,"28 andthat Martinez's attendance would be carefully monitored for the next sixmonths.29 To help Martinez make it to work on time, NEMCH alsoadjusted her daily start time from 8:30 a.m. to 9:00 a.m.30

Martinez's attendance did not improve, despite the adjustment in herstart time. On January 24, 2001, Martinez was suspended without pay forone day as a result of her continued tardiness.31 Two days later shewas given a final CAP, which listed all of the times since her August CAPthat she had been late to work and included a Performance ImprovementPlan that stated, "[a]ny further tardiness in excess of 3 occurrenceswithin the Performance ImprovementPage 6time frame of 3 months will result in immediate termination."32

Leong-Lum sent an email to Susan Perl on April 24, 2001, which notedthat Martinez's anniversary from her last CAP would be on April 25, 2001and that Martinez had been tardy on four separate occasions during thatprobationary period.33 Leong-Lum also mentioned that she would bemeeting with Carmody that afternoon and would discuss the situation withhim.34

Martinez was fired from her position at NEMCH on April 26, 2001.35The written notice of her termination cites both her violation of IPCpolicy and her excessive tardiness as reasons for her dismissal.36

Martinez claims that those reasons are merely pretextual. Both in hercomplaint and in a subsequent affidavit, Martinez alleges that she made"numerous complaints to NEMCH management concerning discriminationagainst international patients at NEMCH."37 She also alleges that shemade "numerous complaints to NEMC[H] supervisory/managerialemployees . . . that [she] was being subject to unequaltreatment . . . because [she] was a single woman with [a] child."38Neither document recites specific details about any of these allegedcomplaints. In herPage 7deposition, moreover, Martinez admits that the most recentconversation she remembers having in which she complained aboutdiscrimination against certain international patients was in 2000.39And, Martinez cannot recall the last time she complained to a supervisorthat she was being treated unequally due to being a single mother, thoughshe thinks it was sometime in 2001.40

A wholly separate incident is the basis for several of Martinez'sclaims. A few months after her termination, Martinez and two of herfriends initiated a phone call to Leong-Lum.41 One of Martinez'sfriends posed as a representative of fictitious technology companyinterested in hiring Martinez, while Martinez and her other friendsecretly listened to the call.42 Leong-Lum expressed surprise thatMartinez was applying for a new job because she thought that Martinez wasmoving out of state.43

When asked why Martinez had been terminated, Leong-Lum answered thatMartinez had given an unauthorized discount to a patient.44 She alsonoted that Martinez was frequently absent because she had a daughter whowas constantly sick.45 Additionally, Leong-LumPage 8volunteered that Martinez did a great job, was very creative, andwas a great person and friend.46

Discussion

NEMCH has filed a motion for summary judgment. Under Federal Rule ofCivil Procedure 56, summary judgment is appropriate "if the pleadings,depositions, answers to interrogatories, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment asa matter of law."47 Rule 56 mandates summary judgment "after adequatetime for discovery and upon motion, against a party who fails to make ashowing sufficient to establish the existence of an element essential tothat party's case, and on which that party will bear the burden of proofat trial."48

The "party seeking summary judgment [must] make a preliminary showingthat no genuine issue of material fact exists. Once the movant has madethis showing, the nonmovant must contradict the showing by pointing tospecific facts demonstrating that there is, indeed, a trialworthyissue."49 The party opposing summary judgment must produce specificevidence of a material factual dispute. The First Circuit has noted that"[a] genuine issue of material fact does not spring into being simplybecause a litigant claims that one exists. Neither wishful thinking nor`mere promise[s] to produce admissible evidence at trial' . . . norconclusory responses unsupported by evidence . . . will serve todefeat a properly focused Rule 56 motion."50Page 9

A. Retaliatory Discharge

Martinez alleges claims of retaliatory discharge under both42 U.S.C. § 2000e-3(a)51 ("Title VII") and Mass. Gen. Laws ch. 15IB §4(4) ("chapter 151B, § 4(4)").52 She alleges that NEMCHterminated her employment in retaliation for the complaints she madeabout NEMCH's discrimination against non-Middle Eastern patients andagainst her as a single mother.

In cases where there is "no direct evidence of retaliatory animus,"both federal and state law require "the plaintiff [to] establish a primafacie case and prove that the defendant[']s[] stated reasons for theemployment action were pretextual."53 In such actions, the burden ofpersuasion always remains with the plaintiff, but the "shifting burden ofproduction . . . follows the tripartite formula of McDonnellDouglas Corporation v. Green."54

Under the McDonnell Douglas framework, a plaintiff must firstmake out a prima facie case of retaliatory discharge.55 Next, thedefendant must "articulate some legitimate, nondiscriminatory reason" forthe employment action.56 If the defendant is able to meet thisPage 10burden, then "the plaintiff must prove that the articulated reasonis a pretext."57 To state a prima facie case of retaliatory dischargeunder Title VII, a plaintiff must show that: "(1) [she] engaged in aprotected activity as an employee, (2) [she] was subsequently dischargedfrom employment, and (3) there was a causal connection between theprotected activity and the discharge."58 Similarly, to succeed on aclaim under chapter 151B § 4(4), "a plaintiff must establish thebasic fact that [s]he was subjected to an adverse employment actionbecause of [her] protected activity."59

Martinez has produced no evidence to suggest "direct retaliatoryanimus," so her claim must be analyzed under the McDonnellDouglas framework. Martinez is unable to satisfy the first prong ofMcDonnell Douglas because she does not present a prima faciecase of retaliation. Martinez's alleged "protected activities" were thecomplaints she made concerning NEMCH's alleged discrimination againstnon-Middle Eastern patients and against her as a single mother. Neitherof these actions constitutes a protected activity under Title VII orchapter 151B § 4(4). Martinez admits that her discriminationcomplaints concerned "discrimination based on ability to pay."60Discrimination based on one's ability to pay is not an "unlawfulpractice" under these sections.61 Similarly, discrimination based onone's status as a single mother is not protectedPage 11under either provision.62

Martinez also asserts that she is protected under Title VII because shehad "a reasonable belief that the practice[s she]. . . oppos[ed]violate[] Title VII."63 Assuming, without deciding, that a reasonablebelief is sufficient, she has still failed to make out a prima facie caseof retaliation because she has not shown any causal connection betweenher complaints and her subsequent termination. Martinez cannot recall thelast time prior to her termination that she complained about hertreatment as a single mother.64 Similarly, the last complaint shecould recall making about discrimination against non-Middle Easternpatients was in 2000, months before she was terminated in April,2001.65

Even if Martinez had established a prima facie case, her claim stillfails. NEMCH has provided ample evidence of non-discriminatory reasonsfor Martinez's discharge. Martinez had a documented tardiness problem,for which she was placed on a corrective action plan and had been warnedthat further violations would result in her termination.66 And, hertermination wasPage 12within a few days to a week of her violation of companypolicy.67 Furthermore, NEMCH has offered evidence to show that notonly did it not discriminate against Martinez for being a single mother,but it actually altered her work hours to accommodate her needs.68

Because NEMCH satisfied its burden of production, in order for herclaim to succeed, Martinez must provide evidence that NEMCH's reasons forher termination were merely pretextual. Martinez cannot met this burden.As noted above, Martinez has not produced evidence that demonstrates anycausal connection between Martinez's complaints and her termination.Thus, Martinez's claims of retaliatory discharge must fail.

B. Termination in Violation of Public Policy

In addition to her claim against NEMCH for retaliatory discharge,Martinez also asserts a claim for termination in violation of publicpolicy, which is an exception to the at-will employment doctrine.69To succeed on such a claim, Martinez must show that she was terminated"for asserting a legally guaranteed right (e.g., filing workers'compensation claim), for doing what the law requires (e.g., serving on ajury), or for refusing to do that which the law forbids (e.g., committingperjury)."70 Martinez's claim is based on her assertion that she wasterminated for asserting a legally guaranteed right, that is, "forreporting violations of NEMCH policies concerning patient rights, patientcare, and billing and privacy issues."71 Martinez,Page 13however, did not report these alleged violations to any regulatorybody. She reported them only to NEMCH staff members and to friends.72The public-policy exception is not broad enough to encompass suchcomplaints.73 Solely internal issues cannot be the basis of apublic-policy exception to the at-will doctrine.74

Plaintiff argues that internal complaints may be a sufficient basis forthe public policy exception and cites Shea v. EmmanuelCollege75 and Upton v. JWP Businessland76 for thatproposition. Plaintiff, however, fails to note that those cases concerninternal complaints about criminal wrongdoing and explicitly distinguishthemselves from non-criminal complaints.77 Moreover, and perhaps mostsignificantly, Martinez presents no evidence that her termination was inany way related to her complaints. Any such assertion is merelyspeculative, and such speculation is not enough to survive a motion forsummary judgment. Thus, her claim must fail.Page 14

C. Invasion of Privacy

Martinez contends that Leong-Lum's statements to Martinez's friendconcerning the reasons for Martinez's termination violated her right toprivacy.78 Mass. Gen. Laws ch. 214, § IB ("chapter 214, §1B") provides, in relevant part, that: "A person shall have a rightagainst unreasonable, substantial or serious interference with hisprivacy." In order for a plaintiff to succeed on an invasion of privacyclaim, he must prove not only that the defendant unreasonably,substantially and seriously interfered with his privacy by disclosingfacts of highly personal or intimate nature, but also that it had nolegitimate reason for doing so.79

To determine whether there has been a violation of chapter 214, §1B in an employment setting, a court must "balance the employer'slegitimate business interest in obtaining and publishing the informationagainst the substantiality of the intrusion on the employee's privacyresulting from the disclosure."80 Statements that are "limited toissues regarding the plaintiff's fitness [as a potential employee do] notconstitute an unreasonable interference with plaintiff's privacy."81

Leong-Lum's statements were made to someone that she reasonablybelieved to be a prospective employer. Her statements related only toissues of Martinez's job performance andPage 15did not include facts "of highly personal or intimate nature." Suchcommunication falls outside of the scope of chapter 214, § 1B.82Martinez's claim, thus, fails as a matter of law.

D. Intentional Interference

Martinez also bases her intentional interference claim on thestatements Leong-Lum made to Martinez's friend concerning the reasons forMartinez's termination. To prevail on a claim for intentionalinterference, a plaintiff must prove the following: "(1) the existence ofa contract or a business relationship which contemplated economicbenefit; (2) the defendant[']s[] knowledge of the contract or businessrelationship; (3) the defendant[']s[] intentional interference with thecontract or business relationship for an improper purpose or by impropermeans; and (4) damages."83

Martinez's claim fails to satisfy several of these requirements. First,because Martinez's friend only posed as a prospective employer, Martinezcannot prove that there was an actual "contract or business relationshipwhich contemplated economic benefit."84 Second, Martinez has notoffered any evidence that Leong-Lum acted with improper purpose or byimproper means. Additionally, "[i]n response to an inquiry about a formeremployee, [a former employer has] a privilege, if not a duty, to speakthe truth even if the disclosure of the facts might negatively affect thesubject's job prospects."85 Third, Martinez cannot claim any damagesfromPage 16Leong-Lum's statements because, as noted above, there was no realbusiness relationship with which Leong-Lum could have interfered. For allof the above reasons, Martinez's claim for intentional interferencefails.

E. Defamation

Defamation is "the publication of material by one without a privilegeto do so which ridicules or treats the plaintiff with contempt."86 Toestablish a claim of defamation, a plaintiff must satisfy the followingelements: First, the defamatory statement must hold the plaintiff up to contempt, hatred, scorn, or ridicule or tend to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community. Second, the statement must have been to at least one other individual other than the one defamed. Third, where the speech is a matter of public concern, a defamation plaintiff must prove not only that the statements were defamatory, but also that they were false. Finally, the plaintiff must show that he suffered special damages and must set forth these damages specifically.87

Massachusetts, however, recognizes both absolute and conditionalprivileges to a defamation claim.88 One such privilege applies toemployers: "An employer has a conditional privilege to disclosedefamatory information concerning an employee when the publication isreasonably necessary to serve the employer's legitimate interest in thefitness of an employee to perform his or her job."89 And, "[o]nce anemployer's conditional privilege is recognized, thePage 17burden shifts to the employee to prove that the privilege wasabused."90 To show such abuse, a plaintiff must "establish[] that thedefendant knowingly or recklessly published the defamatorystatement."91

Martinez argues that NEMCH made defamatory statements about her on atleast two occasions, once when she was told of the reasons for hertermination and once when Leong-Lum spoke to the apparent prospectiveemployer.92 Martinez's claim fails as both episodes are protected bythe conditional privilege.93

As stated above, an employer enjoys a conditional privilege when itmakes "defamatory statements concerning an employee when the publicationis reasonably necessary to serve the employer's legitimate interest inthe fitness of an employee to perform his or her job."94 And, atermination letter "is a reasonably necessary communication to serve [thedefendant's] legitimate interest in providing its employee with thereasons for his termination."95 Martinez has submitted no evidencethat NEMCH abused this privilege.

What is more, NEMCH is shielded from the defamation claim because anemployer whoPage 18provides a reference to a potential employer is also protected bythe conditional privilege.96 And, Martinez has offered no evidence tosuggest that NEMCH abused this privilege either. In fact, Martinezadmitted that Leong-Lum made several complimentary remarks about herduring the telephone call.97 Such remarks are patently inconsistentwith any malice.

Martinez's defamation claim also fails because she invited Leong-Lum'sstatements. In Burns v. Barry,98 the plaintiff similarly hada friend pose as a prospective employer seeking references. In affirmingthe lower court's decision, the Massachusetts Supreme Judicial Courtheld: "[T]he oral statements made by [the defendant] to the plaintiff'sassociate were made in response to telephone inquiries initiated at thebehest of the plaintiff, . . . and were conversations to which helistened. . . . Such statements as [the defendant] made to onepurporting to be a `prospective employer' were privileged."99

Finally, Martinez's defamation claims fail because she has notsubmitted evidence of any damages suffered by her. Damages are anessential element in a defamation claim, and a plaintiff must demonstratethe he "suffered special damages and must set forth these damagesspecifically."100 Martinez has not met this burden. No realemployment prospect was lost, andPage 19Martinez's feelings upon listening to Leong-Lum's statements areinadmissible.101

CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment isALLOWED.

AN ORDER WILL ISSUE.

1. Def.'s Local Rule 56.1 Statement ("Def.'s Statement of UndisputedFacts") ¶ 1.

2. Id.

3. Id. ¶ 2.

4. Id. ¶ 3. Martinez was given the job title of"International Patient Liaison" in or around early 2000. Pl's LocalRule 56.1 Concise Statement of Material Facts Precluding the Entry of Summ. J.for Def. ("Pl.'s Statement of Material Facts") ¶ 3.

5. Def.'s Statement of Undisputed Facts ¶ 12.

6. Id. ¶ 14.

7. Id.

8. Id. ¶ 15.

9. Id. ¶ 16 (quoting NEMCH's Deps. Transcripts andAffs. in support of Summ. J., Ex. A ("Martinez Dep.") 258:14-19).

10. Id. ¶ 17.

11. Id. ¶ 11; Pl.'s Statement of Material Facts ¶23.

12. Def.'s Statement of Undisputed Facts ¶ 11.

13. Id.

14. Id. ¶ 20.

15. NEMCH's Exhibits in support of Summ. J. Ex. 2.

16. Def.'s Statement of Undisputed Facts ¶ 21.

17. Id. ¶ 22. Neither party has submitted facts thatindicate whether NEMCH had actually told the patient that she would notreceive treatment unless she could pay the full $330,000.

18. Id. ¶ 124.

19. Id. ¶ 125.

20. Id. ¶ 26 (internal quotations omitted).

21. Id.

22. Id. ¶ 28 (internal quotations omitted). Despitethis comment, Martinez claims that she did not believe that the patientwas unable to pay for the procedure. Id. Aside from the $75,000already promised, however, Martinez had no other information to indicatethat the patient could "handle the financial aspect of the [bone marrowtransplant]." Id. ¶ 29.

23. Id. ¶ 30.

24. Id.

25. See NEMCH's Exhibits in support of Summ. J. Ex.3.

26. Id. Ex. 4.

27. Id. Ex. 7.

28. Id. Ex. 6.

29. Id.

30. Def.'s Statement of Undisputed Facts ¶ 35.

31. NEMCH's Exhibits in support of Summ. J. Ex. 9.

32. Id. Ex. 5.

33. Id. Ex. 12.

34. Id.: see also id. Ex. 10 (containing Leong-Lum's datednotes of the days that Martinez was tardy).

35. Id. Ex. 13.

36. Id.

37. Compl. ¶ 10; Aff. of Teresa Martinez, submitted in supportof Pl's Opp'n to Def.'s Mot. for Summ. J., Ex. A ("Martinez Aff") ¶6. Specifically, Martinez has complained about discrimination againstnon-Middle Eastern patients.

38. Compl. ¶ 16; Martinez Aff. ¶ 12. Martinez has submittedno evidence of any written complaints concerning discrimination againstinternational patients or against her as a single mother.

39. Martinez Dep. at 263:15-265:18.

40. Id. at 358:10-359:3.

41. Def.'s Statement of Material Fact ¶ 92.

42. Id.

43. Id. ¶ 96.

44. Id. ¶ 95.

45. Id. ¶ 97.

46. Id. ¶¶ 94, 97.

47. Fed.R.Civ.P. 56(c).

48. Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986).

49. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996)(quotations omitted).

50. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990) (citations omitted).

51. 42 U.S.C. § 2000e-3(a) provides, in relevant part, that: "Itshall be unlawful employment practice for an employer to discriminateagainst any of his employees . . . because [the employee] has opposedany practice made an unlawful employment practice by thissubchapter."

52. Mass. Gen. Laws ch. 15IB, § 4(4) provides that it isunlawful "[f]or any person, employer, labor organization or employmentagency to discharge, expel or otherwise discriminate against any personbecause he has opposed any practices forbidden under this chapter orbecause he has filed a complaint, testified or assisted in any proceedingunder section five."

53. Mole v. Univ. of Mass., 787 N.E.2d 1098, 1107 (Mass.App. Ct. 2003) (internal quotations omitted).

54. Id. 411 U.S. 792, 802-805 (1973).

55. Mole, 787 N.E.2dat 1107.

56. Id. (quoting McDonnell Douglas Corp., 411U.S. at 802).

57. Id.

58. Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.1994).

59. Blockel v. J.C. Penney, Co., Inc., 337 F.3d 17, 26(1st Cir. 2003) (internal quotations omitted).

60. Def's Statement of Undisputed Facts ¶ 66.

61. 42 U.S.C. § 2000e(3) only protects an employee fromretaliation because he "has opposed any practice made an unlawfulemployment practice by this subchapter. . . ." That subchapter doesnot include discrimination based on one's ability to pay for medicalservices. See 42 U.S.C. § 2000e to 2000e-17. Likewise,Mass. Gen. Laws ch. 151B, § 4 does not list discrimination based onone's ability to pay for medical services as an unlawful employmentpractice.

62. See 42 U.S.C. § 2000e to 2000e-17. Discriminationbased on status as a single parent is not an lawful employment practiceunder this section. See Gunther v. The GAP. Inc., 1 F. Supp.2d 73,77 (D. Mass. 1998) (noting that parenthood is not a protected classunder chapter 151B, § 4); cf Upton v. JWP Businessland,682 N.E.2d 1357, 1358 (Mass. 1997) (holding that it was not a violation ofpublic policy for an employer to discharge a single mother who refused towork newly imposed longer hours).

63. Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir.1994).

64. Martinez Dep. 358:10-359:3.

65. Id. 263:15-265:18.

66. NEMCH's Exhibits in support of Summ. J. Ex. 5.

67. Id. Ex. 13.

68. Id. Ex. 6; Def.'s Statement of Undisputed Facts ¶35.

69. Smith-Pfeffer v. Superintendent of the Walter E. FernaldState School, 533 N.E.2d 1368, 1369 (Mass. 1989).

70. Id. at 1371.

71. Compl. 36.

72. Def.'s Statement of Undisputed Facts ¶¶ 88-91.

73. See Mistishen v. Falcone Piano Co., Inc.,630 N.E.2d 294, 295 (Mass. App. Ct. 1994) (holding that internalcomplaints about deceptive trade practices were an insufficientbasis for public policy exception).

74. Smith-Pfeffer, 533 N.E.2d at 1371-72.

75. 682 N.E.2d 1348 (Mass. 1997).

76. 682 N.E.2d 1357 (Mass. 1997).

77. Shea, 682 N.E.2d at 1350 ("The distinction ofimportance is between a discharge for an employee's internal complaintabout company policies or the violation of company rules, for whichliability may not be imposed, and an internal complaint made about thealleged violation of the criminal law for which we now decide thatliability may be imposed.") The Upton court went to greatlengths to distinguish between employee actions that are covered by thepublic-policy exception and those that are not. Compare Wright v.Shriners' Hosp. for Crippled Children, 589 N.E.2d 1241 (Mass. 1992)("nurse made internal reports of problems to high-ranking officialswithin hospital organization") (quoting Upton, 682 N.E.2d at1359) with DeRose v. Putnam Mgt. Co., 496 N.E.2d 428 (Mass.1986) ("at-will employee refused to give false testimony against coworkerin criminal trial") (quoting Upton, 682 N.E.2d at 1359).

78. Leong-Lum's statements that Martinez had violated companypolicy, that Martinez was planning to move out of state, and thatMartinez had a daughter who was sick constantly causing her to miss workare the basis for Martinez's invasion of privacy claim. Pl's Opp'n toDef.'s M. for Summ. J. at 11.

79. Schlesinger v. Merrill Lynch., 567 N.E.2d 912, 913-916(Mass. 1991).

80. Bratt v. IBM, 467 N.E.2d 126, 135-36 (Mass.1984).

81. Mulgrew v. City of Taunton, 574 N.E.2d 389, 393 (Mass.1991).

82. Schlesinger, 567 N.E.2d at 913-916.

83. Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,338 (Mass. 1996).

84. Id.

85. Conway v. Smerling, 635 N.E.2d 268, 273 (Mass. App.Ct. 1994). This privilege is lost only if the employer abuses it or actswith actual malice. Burns v. Barry, 228 N.E.2d 728, 731 (Mass.1967) ("Whether the statements to the assumed employer were true or falseis immaterial if there was no abuse of the privilege and there was noshowing of actual malice."). There is no evidence to indicate thatLeong-Lum either abused her privilege or acted with malice.

86. Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass.1991).

87. Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003)(internal citations omitted). Because Leong-Lum's statements were not amatter of public concern, the third element does not apply 1 thiscase.

88. See, e.g., Mulgrew v. City of Taunton, 574 N.E.2d 389,391 (Mass. 1991).

89. Bratt v. IBM, 467 N.E.2d 126, 129 (Mass. 1984).

90. Elicier v. Toys "R" Us, Inc., 130 F. Supp.2d 307, 311(D. Mass. 2001).

91. Mulgrew, 574 N.E.2d at 392.

92. Pl's Opp'n to Def.'s M. for Summ. J. at 13.

93. Martinez argues that NEMCH lost its right to a conditionalprivilege because the reasons for Martinez's termination "were a pretextfor unlawful retaliation." Pl's Opposition to Def.'s M. for Summ. J. at13. This court, however, has found no unlawful retaliation, so NEMCH'sconditional privilege remains intact.

94. Bratt, 467 N.E.2d at 129.

95. Axton-Cross Co., Inc. v. Blanchette, No. 942764H, 1994WL 879570, at *2 (Mass. Super. Ct. Oct. 17, 1994).

96. Mulgrew, 574 N.E.2d at 391-92 (holding that statementsmade by plaintiff's supervisor to hiring committee regarding plaintiff'spast job performance were protected by a qualified privilege).

97. Leong-Lum had volunteered that Martinez did a great job, wasvery creative, and was a great person and friend. Def.'s Statement ofUndisputed Facts ¶¶ 94, 97.

98. 228 N.E.2d 728 (Mass. 1967).

99. Id. at 731.

100. Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003).

101. Burns, 228 N.E.2d at 732.

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