FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
Muller, with whom Muller Law, LLC was on brief, for
Rebecca G. Capozzi, with whom Robert L. Bouley and McCarthy,
Bouley, Barry & Morgan, P.C. were on brief, for appellee.
Lynch, Selya, and Barron, Circuit Judges.
case is a defamation case, brought against a psychiatrist who
disseminated an allegedly libelous report to an employer
about an employee's fitness to return to work after a
period of medical leave. Whether particular speech is
actionable as defamation sometimes depends on the role of the
speaker, and so it is here. The challenged speech was
published under a conditional privilege. We conclude that no
reasonable jury could find that the defendant abused this
privilege. Accordingly, we affirm the district court's
entry of summary judgment in favor of the defendant.
briefly rehearse the facts and travel of the case, viewing
the events in the light most hospitable to the nonmoving
party (here, the plaintiff). See Houlton Citizens'
Coal. v. Town of Houlton, 175 F.3d
178, 184 (1st Cir. 1999). Plaintiff-appellant Alan Zeigler
began working as an information technology professional at
Atrius Health, Inc. (Atrius) in 2005. In January of 2015,
Zeigler began reporting to a new supervisor, Christopher
Joseph. Zeigler - who was then in his mid-fifties - contends
that Joseph consistently made derogatory remarks about his
age. The stress purportedly caused by these remarks
culminated in a panic attack, prompting Zeigler to take
medical leave in April of 2015.
to his expected return that June, Zeigler spoke by telephone
with an Atrius human resources representative. During this
exchange, Zeigler stated that he had become so angry with
Joseph (before his panic attack) that Joseph "might have
got[ten] hurt" had "it been somebody else who had
not had the skills to keep [their anger] under control."
The human resources department subsequently required Zeigler
to undergo a psychiatric evaluation to determine his fitness
to return to work.
enlisted defendant-appellee Dr. Michael Rater to perform this
task, following a referral from Scope Medical, LLC (Scope).
Dr. Rater was no stranger to such assignments: he supplements
his practice by performing fitness-for-duty evaluations for
employers through referrals from intermediaries such as
Scope. The purpose of a fitness-for-duty evaluation is to
assess whether an employee can perform his job without posing
a safety risk to other workers or himself.
preparing to evaluate Zeigler's ability to return to
work, Dr. Rater received and reviewed certain documents
supplied by Atrius, including medical records from
Zeigler's primary care physician. These records contained
notations to the effect that Zeigler was "stressed and
angry" and "[h]aving difficulty with [his] new
director." Dr. Rater conducted an in-person examination
of Zeigler on June 11, 2015 for one hour.
written report issued on June 26 (the June report), Dr. Rater
concluded "to a reasonable degree of medical
certainty" that Zeigler had "learned no new skills
or techniques to manage his anger and agitation
symptoms" and thus was unfit "to return to his same
employment under the same manager." Dr. Rater
recommended that Zeigler consult weekly with a mental health
provider to develop anger management skills.
began seeing Ivy Marwil, a licensed social worker, for
regular therapy sessions. After three such sessions, Marwil
reported to Dr. Rater that she saw no indication that Zeigler
had or would ever act on his anger at work. She added that,
in her opinion, Zeigler was ready to return to work at
Atrius. At Atrius's behest, Zeigler again saw Dr. Rater
on July 30, 2015. Zeigler told Dr. Rater that he had acquired
valuable anger management skills in therapy and that he felt
positive about the prospect of returning to work. Based on
his in-person evaluation and his review of Marwil's
letter, Dr. Rater told Scope (in a verbal report on July 30,
2015) that Zeigler was fit to return to work.
August 4, Zeigler returned to the workplace. Within a few
hours of Zeigler's arrival, two coworkers - Jean George
and Alida Fountaine - reported unsettling interactions with
Zeigler to Adam Centofanti, an Atrius human resources
representative. George served as Director of Health
Information Management and Site Administrator, and Fountaine
served as the Manager of IT Client Services. George and
Fountaine first reported their encounters with Zeigler to
Centofanti verbally and, at Centofanti's request,
followed up with e-mails.
10:59 a.m., George e-mailed the following message to
With today being Alan Zeigler's first day back into the
office, as the Site Administrator I went over to welcome him
back. My conversation with Alan had been rather un-nerving
given his comments regarding Chris Joseph, and everyone at
Atrius. He kept mentioning how he is "suing" and
that Atrius wouldn't allow him to come back to work in
June. He also mentioned how Chris Joseph stated he was
"too old for his role[.]"
Alan referenced numerous organizations that he has filed
claims with, and one in particular that he felt the physician
that diagnosed him as being aggressive "is being sued
for [m]alpractice, I think Atrius told him to say
that[.]" He clearly is agitated and I'm concerned
with his ability to control his emotions. I kept trying to
tell him, it's great to have him back and that it's a
new start, but he really is just negative and stated "I
won't be here long with all the law suits I have[.]"
Is there a transition plan available for staff returning from
an FMLA for both the staff member and the staff that directly
report to them?
Happy to help him in any way I can, Jean
12:07 p.m., Fountaine sent the following e-mail to
Alan Zeigler stopped by my office this morning around 10:00
or so . . . . I'm not sure if he was venting, but it was