Opinion
16-P-313
06-14-2017
Nidia LOPEZ v. MASSACHUSETTS GENERAL HOSPITAL& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Nidia Lopez, appeals from a Superior Court judgment for the defendants, her former employer Massachusetts General Hospital (MGH), and its employee Angel Negron, on Lopez's claims alleging wrongful termination in violation of public policy, defamation, and intentional interference with contractual relations. On appeal, Lopez contends that the motion judge erroneously granted the defendants' motion for summary judgment, arguing that the judge disregarded disputed material facts relating to her defamation claim and her wrongful termination claim. We affirm.
On appeal, Lopez does not make any argument with regard to her intentional interference with contractual relations claim. We thus consider it waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").
1. Summary judgment. "On appeal, we review the motion judge's grant of summary judgment de novo." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). Summary judgment is granted where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Facts are viewed in the light most favorable to the nonmoving party, here Lopez. Humphrey v. Byron, 447 Mass. 322, 325 (2006). Where the party opposing summary judgment bears the burden of proof, the moving party "has the burden of initially showing that there is an absence of evidence to support the case of the nonmoving party." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991).
2. Facts. Viewed in the light most favorable to Lopez, the summary judgment record discloses the following facts. On December 24, 2013, Lopez used a twenty dollar bill to purchase oatmeal in the hospital cafeteria. The cashier believed the bill to be counterfeit and reported her suspicion to Negron, a cafeteria supervisor. The cashier had received four twenty dollar bills that morning in fewer than ten minutes, but she claimed that the first twenty dollar bill, tendered by Lopez, was the counterfeit bill. Lopez denies that she used a counterfeit bill and claims even if she did, she was unaware it was counterfeit. It is undisputed that there was a counterfeit bill in the cash register that morning.
Negron reported the counterfeit bill to the MGH police and security department, security officers John Petty and Frank Garvin, and investigator Robert Patenaude. Lopez contends that Negron falsely stated to Garvin and Patenaude that when he spoke with Lopez, she stated that she had "more bills upstairs." When questioned, Lopez explained that on December 23, 2013, patients had given her Christmas cards containing money, including one that included a five dollar bill and a twenty dollar bill. When Patenaude asked Lopez for the names of those patients, she declined to provide the patients' names, first, because she believed it would be a violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to share private patient information and second, because she knew who the patients were but did not remember their names.
MGH terminated Lopez, a ten-year employee, on January 13, 2014. Additional MGH employees were informed of the investigation and Lopez's termination, including people who either worked with her or were involved in scheduling her grievance hearing. We reserve for later discussion these disclosures.
3. Discussion. a. Wrongful termination. An "employment contract which is ‘at will’ may be terminated by either side without reason." Fortune v. National Cash Register Co., 373 Mass. 96, 100 (1977). However, there is an exception where an employer "terminates an at-will employee in violation of a clearly established public policy." Hobson v. McLean Hosp. Corp., 402 Mass. 412, 416 (1988). Lopez argues that MGH terminated her employment in violation of public policy because she refused to violate patient privacy rights granted by HIPAA.
Lopez agrees that her supervisor told her that she could provide the investigators with the identities of the patients who gave her money gifts without violating HIPAA.
Lopez acknowledges that HIPAA contains an exception that allows a covered entity to provide information that would ordinarily be protected "to a law enforcement official ... [if] the covered entity believes in good faith that [the protected health information] constitutes evidence of criminal conduct that occurred on the premises of the covered entity." 45 C.F.R. § 164.512(f)(5) (2016). She contends, however, that disclosure was not required by law pursuant to 45 C.F.R. § 164.512(a)(1) (2016), because the information the investigators were seeking was readily accessible to them in MGH's records. Specifically, she contends that MGH already knew the patients with whom Lopez worked and did not need her to disclose those names. Lopez cites no case law for this proposition, and 45 C.F.R. § 164.512(a)(2) expressly permits disclosure if the requirements of § 164.512(f) are met. Moreover, her argument undermines rather than supports her position. Lopez would not have been disclosing to MGH patient information, which she acknowledges MGH already had. No public purpose would be served by requiring MGH to potentially question all the patients with whom Lopez worked in the OB/GYN department to determine the origin of the counterfeit bill rather than just the three who gave her money.
b. Defamation claim and conditional privilege. Lopez also argues that MGH and Negron made defamatory statements about her. "To prevail on a claim of defamation, 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., 442 Mass. 64, 66 (2004). "[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 (2003).
Here, Lopez does not dispute that the defendants' statements fall within an employer's 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 the employee to perform his or her job." Foley v. Polaroid Corp., 400 Mass. 82, 94 (1987). Rather, she argues that the defendants lost their conditional privilege through abuse. See Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 134 (1984) (when defendant proves that conditional privilege applies, burden shifts back to plaintiff to prove that privilege was abused).
A conditional privilege protects a defendant from liability unless (1) there is "unnecessary, unreasonable, or excessive publication" and the plaintiff can show the defendant recklessly published the defamatory statements, (2) the defendant published the defamatory statements with knowledge of their falsity or with reckless disregard of the truth, or (3) the defendant acted with actual malice. Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 631 (2012) (quotation omitted). See Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 438 (2005). Conditional privilege may also be lost if the plaintiff proves the defendant acted out of malice. "Malice, in this sense, occurs when the defamatory words, although spoken on a privileged occasion, were not spoken pursuant to the right and duty which created the privilege but were spoken out of some base ulterior motive," Dragonas, supra, quoting from Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987), which may include the intent to injure another, intent to use the privilege as a pretense, or reckless disregard of the rights of another. Id. at 438-439. Whatever the manner of the loss of privilege, a minimum of recklessness is required. See Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 515 (1984) ; Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., supra. To show reckless disregard as to the truth of the statement, the plaintiff must put forth "sufficient evidence ... that the defendant in fact entertained serious doubts as to the truth of [the] publication." King v. Globe Newspaper Co., 400 Mass. 705, 720 (1987), quoting from St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
i. MGH. Lopez claims that MGH lost its conditional privilege by publishing information to six employees who did not need to know about the investigation or her termination. We address each group of employees in turn.
On appeal, Lopez argues that Garvin's conduct during the investigation constituted a procedural due process violation. We do not consider this argument independently because it is raised only in support of her defamation claim.
A. Larkin. Heidi Larkin, a registered nurse in the OB/GYN department, received an electronic mail message (e-mail) from the human resources (HR) department, which stated that HR had been contacted "regarding an incident and ongoing investigation that [Lopez] was involved in" and that Lopez had been placed on investigatory leave. As it is undisputed that Lopez was involved in an "ongoing investigation" and was placed on investigatory leave, this communication to Larkin was substantially true and not defamatory. Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12-13 (1992). In addition, Lopez herself disclosed to Larkin that she was being investigated for misconduct that she did not commit. Further, Lopez has not alleged conduct by MGH rising to the level of recklessness required for abuse of its conditional privilege. Larkin previously held a supervisory role in the OB/GYN department and testified that she was informed about the investigation based on the mistaken belief that she was still a supervisor. Here, MGH's communications to Larkin were conditionally privileged because MGH's mistake did not rise to the level of recklessness required to defeat the conditional privilege.
B. Hames and Hoffnagle. Maureen Hames is a senior clinical research coordinator at MGH, and worked closely with Lopez. Lopez alleges that Hames told Alison Hoffnagle, programmer of a clinical research study, that Lopez was on investigatory leave "for some wrongdoing" having "something to do with counterfeit money." There was no evidence to suggest that this statement—or a later statement that Lopez was terminated—was false. In addition, dissemination to these two individuals was de minimus and does not rise to the level of reckless publication. It is undisputed that Hoffnagle was later informed of Lopez's termination by HR because she wanted to hire Lopez as a clinical research assistant and inquired whether she needed to find another candidate.
C. White, Lyons, and Gamache. After Lopez initiated a grievance, Lauren Helmark White, an HR assistant, communicated the fact that Lopez was terminated for misconduct to members of the grievance committee and copied two members' administrative assistants, Paula Lyons and Mary Lee Gamache, because these employees were involved in scheduling the grievance hearing. This statement was substantially true. In any event, the statement was "reasonably necessary to serve the employer's legitimate interest" to schedule the grievance hearing and not made recklessly. Foley v. Polaroid Corp., 400 Mass. at 94 (quotation omitted). Thus, MGH's communication via White to Lyons and Gamache was conditionally privileged.
ii. Negron. Lopez first argues that Negron's statement to Garvin that Lopez said she had "more bills upstairs" was a defamatory false statement, and summary judgment should have been denied because Lopez disputed whether she said this to Negron. As the motion judge explained, Negron's statements were privileged where the party "went to the police, or communicated with others, of [his] own initiative and published an accusation that might otherwise never have been known." Correllas v. Viveiros, 410 Mass. 314, 322 (1991). Negron reported what he believed to be criminal conduct as well as statements Lopez allegedly made to him when confronted. It was not his duty to verify the claims.
Nonetheless, Lopez contends that Negron lost the conditional privilege because he acted with actual malice. Lopez also argues that Negron acted with malice because (1) he was retaliating against her for an incident six years earlier where Lopez reported to Negron that she had witnessed Negron's sister-in-law giving away food to a customer in the cafeteria, and (2) Lopez is Colombian, and she alleges that Negron was involved in treating employees of Colombian descent differently than white employees. "Although spite or ill will can support a finding of malice, it is not enough to show that the defendant merely disliked the plaintiff or that such animosity was part of the defendant's motivation.... Instead, the conditional privilege is lost only ‘if the publication is not made chiefly for the purpose of furthering the interest which is entitled to protection.’ " Dragonas, 64 Mass. App. Ct. at 439, quoting from Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 n.4 (1978). Negron's statement that Lopez had more bills upstairs was made "chiefly for the purpose" of investigating allegations of serious misconduct and potential criminal activity. Even viewing the evidence in the light most favorable to Lopez, we conclude that she has not offered sufficient evidence of malice to create a dispute of material fact.
iii. Defamation by conduct. Lopez also argues that MGH's actions constituted defamation by conduct because its security guards escorted her from MGH. Lopez has not demonstrated a dispute of material fact on this claim. See Phelan v. May Dept. Stores Co., 443 Mass. 52 (2004) (plaintiff needed to present testimony from at least one coworker who observed security guard's actions of escorting plaintiff around office and interpreted such actions as defamatory). Moreover, even if the security guard's conduct was defamatory, Lopez has not introduced facts to defeat MGH's conditional privilege, as discussed above.
To the extent we do not address other issues raised by Lopez, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.