Martinez v. New England Med. Ctr. Hosp.
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TERESA MARTINEZ,
Plaintiff,
v.
NEW ENGLAND MEDICAL CENTER
HOSPITALS, INC.,
Defendant.
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MEMORANDUM
March 3, 2004
Civil Action No. 01-12349-JLT
TAURO, J.
Plaintiff Teresa Martinez (“Martinez”) initiated this action against Defendant New
England Medical Center Hospitals, Inc. (“NEMCH”), alleging violations 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 around 1996.1 The IPC
was designed to attract “international patients capable of paying full price for medical care.”2
Martinez began working as an employee in the IPC in or around August, 1997.3 Her job
1 Def.’s Local Rule 56.1 Statement (“Def.’s Statement of Undisputed Facts”) ¶ 1.
2 Id.
3 Id. ¶ 2.
responsibilities 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 ensuring payment is to first
provide an initial estimate to the patient, which the patient must pay for up front.6 The actual
charges are then delineated on an invoice after the services have been provided. IPC
coordinators are authorized to provide up to a twenty-percent discount “from the total gross
charges without specific approval from [NEMCH’s Chief Financial Officer (‘CFO’)].”7
Martinez understood NEMCH’s policy required the IPC “to obtain 50% or 100% of the
estimated cost on a case-by-case basis.”8 And, she knew that “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
also recognized that any discount in excess of twenty percent had to be approved by the CFO.10
NEMCH claims that Martinez was terminated as a result of her failure to abide by these
regulations.
4 Id. ¶ 3. Martinez was given the job title of “International Patient Liaison” in or around
early 2000. Pl.’s Local Rule 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 and Affs. in support of Summ. J., Ex. A
(“Martinez Dep.”) 258:14-19).
10 Id. ¶ 17.
2
In the spring of 2001, Martinez was acting as the patient liaison for an Ecuadoran patient
in need of a bone-marrow transplant.11 The procedure was estimated to cost $330,000.12
Martinez faxed that estimate to either the patient or the patient’s cousin.13
The patient was scheduled to start chemotherapy on April 23, 2001, but by April 11,
2001, Martinez had received only a $5,000 deposit for the treatment14. When asked by the bone
marrow transplant coordinator if the patient was “all set” for the procedure, Martinez answered,
“[i]f the question is if she is all set with the cost of the estimate[, the answer] is no.”15 Martinez,
however, did not notify her supervisor, Wendy Leong-Lum (“Leong-Lum”), or NEMCH’s CFO
about the situation.16
A week before the patient was to undergo treatment, her family threatened to go to the
press and say that she was denied care because she was unable to pay.17 NEMCH’s Chief
Operating Officer (“COO”), Dr. Miller (the physician who was to perform the transplant) and the
hospital’s public affairs person went to see Martinez to find out the facts 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 undertaken
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 that indicate whether NEMCH had actually
told the patient that she would not receive treatment unless she could pay the full $330,000.
3
fundraising initiatives.”18 Martinez responded that the patient “would have to provide [her] with
the $75,000, a letter of intent of fundraising and that Martinez would take it from there.”19 The
patient, or the cousin, then inquired about the possibility of a greater discount, to which Martinez
answered that “only if the doctor offers something in addition to [the] 20%[,] will the Hospital
consider [it,] . . . and . . . it[’]s up to you if you want to speak to the physician.”20 Martinez then
met with the patient, or her family, and discussed the possibility of her “approaching the
physician directly about waiving his fees.”21 At some point during these discussions, the
patient’s cousin said to Martinez, “I mean, who has $330,000 to give.”22
After Dr. Miller learned what had happened, he was “outraged” because the hospital
could not “stop treatment now.”23 Leong-Lum later told Martinez that NEMCH’s management
was extremely upset about the situation.24 On April 23, 2001, Leong-Lum made written notes
about her communications concerning the incident for her file.25 In addition, NEMCH’s Vice
President of General Services, James Carmody (“Carmody”), sent an email to the Chief
18 Id. ¶ 24.
19 Id. ¶ 25.
20 Id. ¶ 26 (internal quotations omitted).
21 Id.
22 Id. ¶ 28 (internal quotations omitted). Despite this comment, Martinez claims that she
did not believe that the patient was unable to pay for the procedure. Id. Aside from the $75,000
already promised, however, Martinez had no other information to indicate that the patient could
“handle the financial aspect of the [bone marrow transplant].” Id. ¶ 29.
23 Id. ¶ 30.
24 Id.
25 See NEMCH’s Exhibits in support of Summ. J. Ex. 3.
4
Executive Officer and the COO 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, NEMCH also asserts that
Martinez was fired for repeated tardiness. On June 29, 2000, Martinez had been placed on a
Corrective Action Plan (“CAP”) to address her tardiness issues.27 She was placed on another
CAP on August 7, 2000. The August CAP noted that since the June CAP, Martinez had “come
in at least 10 minutes late on several occasions,”28 and that Martinez’s attendance would be
carefully monitored for the next six months.29 To help Martinez make it to work on time,
NEMCH also adjusted 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 her start time. On
January 24, 2001, Martinez was suspended without pay for one day as a result of her continued
tardiness.31 Two days later she was given a final CAP, which listed all of the times since her
August CAP that she had been late to work and included a Performance Improvement Plan that
stated, “[a]ny further tardiness in excess of 3 occurrences within the Performance Improvement
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.
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time frame of 3 months will result in immediate termination.”32
Leong-Lum sent an email to Susan Perl on April 24, 2001, which noted that Martinez’s
anniversary from her last CAP would be on April 25, 2001 and that Martinez had been tardy on
four separate occasions during that probationary period.33 Leong-Lum also mentioned that she
would be meeting with Carmody that afternoon and would discuss the situation with him.34
Martinez was fired from her position at NEMCH on April 26, 2001.35 The written notice
of her termination cites both her violation of IPC policy and her excessive tardiness as reasons
for her dismissal.36
Martinez claims that those reasons are merely pretextual. Both in her complaint and in a
subsequent affidavit, Martinez alleges that she made “numerous complaints to NEMCH
management concerning discrimination against international patients at NEMCH.”37 She also
alleges that she made “numerous complaints to NEMC[H] supervisory/managerial employees . . .
that [she] was being subject to unequal treatment . . . because [she] was a single woman with [a]
child.”38 Neither document recites specific details about any of these alleged complaints. In her
32 Id. Ex. 5.
33 Id. Ex. 12.
34 Id.; see also id. Ex. 10 (containing Leong-Lum’s dated notes of the days that Martinez
was tardy).
35 Id. Ex. 13.
36 Id.
37 Compl. ¶ 10; Aff. of Teresa Martinez, submitted in support of Pl.’s Opp’n to Def.’s
Mot. for Summ. J., Ex. A (“Martinez Aff.”) ¶ 6. Specifically, Martinez has complained about
discrimination against non-Middle Eastern patients.
38 Compl. ¶ 16; Martinez Aff. ¶ 12. Martinez has submitted no evidence of any written
complaints concerning discrimination against international patients or against her as a single
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deposition, moreover, Martinez admits that the most recent conversation she remembers having
in which she complained about discrimination against certain international patients was in
2000.39 And, Martinez cannot recall the last time she complained to a supervisor that she was
being treated unequally due to being a single mother, though she thinks it was sometime in
2001.40
A wholly separate incident is the basis for several of Martinez’s claims. A few months
after her termination, Martinez and two of her friends initiated a phone call to Leong-Lum.41
One of Martinez’s friends posed as a representative of fictitious technology company interested
in hiring Martinez, while Martinez and her other friend secretly listened to the call.42 Leong-
Lum expressed surprise that Martinez was applying for a new job because she thought that
Martinez was moving out of state.43
When asked why Martinez had been terminated, Leong-Lum answered that Martinez had
given an unauthorized discount to a patient.44 She also noted that Martinez was frequently
absent because she had a daughter who was constantly sick.45 Additionally, Leong-Lum
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.
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volunteered that Martinez did a great job, was very creative, and was a great person and friend.46
Discussion
NEMCH has filed a motion for summary judgment. Under Federal Rule of Civil
Procedure 56, summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”47 Rule 56 mandates summary judgment “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.”48
The “party seeking summary judgment [must] make a preliminary showing that no
genuine issue of material fact exists. Once the movant has made this showing, the nonmovant
must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a
trialworthy issue.”49 The party opposing summary judgment must produce specific evidence of
a material factual dispute. The First Circuit has noted that “[a] genuine issue of material fact
does not spring into being simply because a litigant claims that one exists. Neither wishful
thinking nor ‘mere promise[s] to produce admissible evidence at trial’ . . . nor conclusory
responses unsupported by evidence . . . will serve to defeat a properly focused Rule 56 motion.”50
46 Id. ¶¶ 94, 97.
47Fed. R. Civ. P. 56(c).
48Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
49Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996) (quotations omitted).
50Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (citations omitted).
88
A.
Retaliatory Discharge
Martinez alleges claims of retaliatory discharge under both 42 U.S.C. § 2000e-3(a)51
(“Title VII”) and Mass. Gen. Laws ch. 151B § 4(4) (“chapter 151B, § 4(4)”).52 She alleges that
NEMCH terminated her employment in retaliation for the complaints she made about NEMCH’s
discrimination against non-Middle Eastern patients and against 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 prima facie case and prove that the defendant[’]s[]
stated reasons for the employment action were pretextual.”53 In such actions, the burden of
persuasion always remains with the plaintiff, but the “shifting burden of production . . . follows
the tripartite formula of McDonnell Douglas Corporation v. Green.”54
Under the McDonnell Douglas framework, a plaintiff must first make out a prima facie
case of retaliatory discharge.55 Next, the defendant must “articulate some legitimate,
nondiscriminatory reason” for the employment action.56 If the defendant is able to meet this
51 42 U.S.C. § 2000e-3(a) provides, in relevant part, that: “It shall be unlawful
employment practice for an employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment practice by this
subchapter.”
52 Mass. Gen. Laws ch. 151B, § 4(4) provides that it is unlawful “[f]or any person,
employer, labor organization or employment agency to discharge, expel or otherwise
discriminate against any person because he has opposed any practices forbidden under this
chapter or because he has filed a complaint, testified or assisted in any proceeding under 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.2d at 1107.
56 Id. (quoting McDonnell Douglas Corp., 411 U.S. at 802).
99
burden, then “the plaintiff must prove that the articulated reason is a pretext.”57 To state a prima
facie case of retaliatory discharge under Title VII, a plaintiff must show that: “(1) [she] engaged
in a protected activity as an employee, (2) [she] was subsequently discharged from employment,
and (3) there was a causal connection between the protected activity and the discharge.”58
Similarly, to succeed on a claim under chapter 151B § 4(4), “a plaintiff must establish the basic
fact that [s]he was subjected to an adverse employment action because of [her] protected
activity.”59
Martinez has produced no evidence to suggest “direct retaliatory animus,” so her claim
must be analyzed under the McDonnell Douglas framework. Martinez is unable to satisfy the
first prong of McDonnell Douglas because she does not present a prima facie case of retaliation.
Martinez’s alleged “protected activities” were the complaints she made concerning NEMCH’s
alleged discrimination against non-Middle Eastern patients and against her as a single mother.
Neither of these actions constitutes a protected activity under Title VII or chapter 151B § 4(4).
Martinez admits that her discrimination complaints concerned “discrimination based on ability to
pay.”60 Discrimination based on one’s ability to pay is not an “unlawful practice” under these
sections.61 Similarly, discrimination based on one’s status as a single mother is not protected
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 from retaliation because he “has
opposed any practice made an unlawful employment practice by this subchapter . . . .” That
subchapter does not include discrimination based on one’s ability to pay for medical services.
1010
under either provision.62
Martinez also asserts that she is protected under Title VII because she had “a reasonable
belief that the practice[s she] . . . oppos[ed] violate[] Title VII.”63 Assuming, without deciding,
that a reasonable belief is sufficient, she has still failed to make out a prima facie case of
retaliation because she has not shown any causal connection between her complaints and her
subsequent termination. Martinez cannot recall the last time prior to her termination that she
complained about her treatment as a single mother.64 Similarly, the last complaint she could
recall making about discrimination against non-Middle Eastern patients was in 2000, months
before she was terminated in April, 2001.65
Even if Martinez had established a prima facie case, her claim still fails. NEMCH has
provided ample evidence of non-discriminatory reasons for Martinez’s discharge. Martinez had
a documented tardiness problem, for which she was placed on a corrective action plan and had
been warned that further violations would result in her termination.66 And, her termination was
See 42 U.S.C. §§ 2000e to 2000e-17. Likewise, Mass. Gen. Laws ch. 151B, § 4 does not list
discrimination based on one’s ability to pay for medical services as an unlawful employment
practice.
62 See 42 U.S.C. §§ 2000e to 2000e-17. Discrimination based on status as a single parent
is not an lawful employment practice under this section. See Gunther v. The GAP, Inc., 1 F.
Supp. 2d 73, 77 (D. Mass. 1998) (noting that parenthood is not a protected class under chapter
151B, § 4); cf Upton v. JWP Businessland, 682 N.E.2d 1357, 1358 (Mass. 1997) (holding that it
was not a violation of public policy for an employer to discharge a single mother who refused to
work 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.
1111
within a few days to a week of her violation of company policy.67 Furthermore, NEMCH has
offered evidence to show that not only 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 her claim to succeed,
Martinez must provide evidence that NEMCH’s reasons for her termination were merely
pretextual. Martinez cannot met this burden. As noted above, Martinez has not produced
evidence that demonstrates any causal 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 public policy, which is an exception to the at-will
employment doctrine.69 To 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 a jury), or for refusing to do that which the law
forbids (e.g., committing perjury).”70 Martinez’s claim is based on her assertion that she was
terminated for asserting a legally guaranteed right, that is, “for reporting violations of NEMCH
policies concerning patient rights, patient care, and billing and privacy issues.”71 Martinez,
67 Id. Ex. 13.
68 Id. Ex. 6; Def.’s Statement of Undisputed Facts ¶ 35.
69 Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 533 N.E.2d
1368, 1369 (Mass. 1989).
70 Id. at 1371.
71 Compl. ¶ 36.
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however, did not report these alleged violations to any regulatory body. She reported them only
to NEMCH staff members and to friends.72 The public-policy exception is not broad enough to
encompass such complaints.73 Solely internal issues cannot be the basis of a public-policy
exception to the at-will doctrine.74
Plaintiff argues that internal complaints may be a sufficient basis for the public policy
exception and cites Shea v. Emmanuel College75 and Upton v. JWP Businessland76 for that
proposition. Plaintiff, however, fails to note that those cases concern internal complaints about
criminal wrongdoing and explicitly distinguish themselves from non-criminal complaints.77
Moreover, and perhaps most significantly, Martinez presents no evidence that her termination
was in any way related to her complaints. Any such assertion is merely speculative, and such
speculation is not enough to survive a motion for summary judgment. Thus, her claim must fail.
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 internal complaints about deceptive trade practices were an insufficient basis 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 of importance is between a discharge for an
employee’s internal complaint about company policies or the violation of company rules, for
which liability may not be imposed, and an internal complaint made about the alleged violation
of the criminal law for which we now decide that liability may be imposed.”) The Upton court
went to great lengths to distinguish between employee actions that are covered by the public-
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 officials within hospital organization”) (quoting Upton, 682 N.E.2d at 1359) with
DeRose v. Putnam Mgt. Co., 496 N.E.2d. 428 (Mass. 1986) (“at-will employee refused to give
false testimony against coworker in criminal trial”) (quoting Upton, 682 N.E.2d at 1359).
1313
C.
Invasion of Privacy
Martinez contends that Leong-Lum’s statements to Martinez’s friend concerning the
reasons for Martinez’s termination violated her right to privacy.78 Mass. Gen. Laws ch. 214, §
1B (“chapter 214, § 1B”) provides, in relevant part, that: “A person shall have a right against
unreasonable, substantial or serious interference with his privacy.” In order for a plaintiff to
succeed on an invasion of privacy claim, he must prove not only that the defendant
unreasonably, substantially and seriously interfered with his privacy by disclosing facts of highly
personal or intimate nature, but also that it had no legitimate 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’s legitimate business interest in obtaining and
publishing the information against the substantiality of the intrusion on the employee’s privacy
resulting from the disclosure.”80 Statements that are “limited to issues regarding the plaintiff’s
fitness [as a potential employee do] not constitute an unreasonable interference with plaintiff’s
privacy.”81
Leong-Lum’s statements were made to someone that she reasonably believed to be a
prospective employer. Her statements related only to issues of Martinez’s job performance and
78 Leong-Lum’s statements that Martinez had violated company policy, that Martinez was
planning to move out of state, and that Martinez had a daughter who was sick constantly causing
her to miss work are the basis for Martinez’s invasion of privacy claim. Pl.’s Opp’n to Def.’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).
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did not include facts “of highly personal or intimate nature.” Such communication falls outside
of the scope of chapter 214, § 1B.82 Martinez’s claim, thus, fails as a matter of law.
D.
Intentional Interference
Martinez also bases her intentional interference claim on the statements Leong-Lum
made to Martinez’s friend concerning the reasons for Martinez’s termination. To prevail on a
claim for intentional interference, a plaintiff must prove the following: “(1) the existence of a
contract or a business relationship which contemplated economic benefit; (2) the defendant[’]s[]
knowledge of the contract or business relationship; (3) the defendant[’]s[] intentional
interference with the contract or business relationship for an improper purpose or by improper
means; 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, Martinez cannot prove that there was an actual
“contract or business relationship which contemplated economic benefit.”84 Second, Martinez
has not offered any evidence that Leong-Lum acted with improper purpose or by improper
means. Additionally, “[i]n response to an inquiry about a former employee, [a former employer
has] a privilege, if not a duty, to speak the truth even if the disclosure of the facts might
negatively affect the subject’s job prospects.”85 Third, Martinez cannot claim any damages from
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 acts with actual malice. Burns v. Barry, 228 N.E.2d 728,
731 (Mass. 1967) (“Whether the statements to the assumed employer were true or false is
1515
Leong-Lum’s statements because, as noted above, there was no real business relationship with
which Leong-Lum could have interfered. For all of the above reasons, Martinez’s claim for
intentional interference fails.
E.
Defamation
Defamation is “the publication of material by one without a privilege to do so which
ridicules or treats the plaintiff with contempt.”86 To establish a claim of defamation, a plaintiff
must satisfy the following elements:
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 conditional privileges to a
defamation claim.88 One such privilege applies to employers: “An 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.”89 And, “[o]nce an employer’s conditional privilege is recognized, the
immaterial if there was no abuse of the privilege and there was no showing of actual malice.”).
There is no evidence to indicate that Leong-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 a matter of public concern, the third element does not apply to
this case.
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).
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burden shifts to the employee to prove that the privilege was abused.”90 To show such abuse, a
plaintiff must “establish[] that the defendant knowingly or recklessly published the defamatory
statement.”91
Martinez argues that NEMCH made defamatory statements about her on at least two
occasions, once when she was told of the reasons for her termination and once when Leong-Lum
spoke to the apparent prospective employer.92 Martinez’s claim fails as both episodes are
protected by the conditional privilege.93
As stated above, an employer enjoys a conditional privilege when it makes “defamatory
statements 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.”94 And, a
termination letter “is a reasonably necessary communication to serve [the defendant’s] legitimate
interest in providing its employee with the reasons for his termination.”95 Martinez has
submitted no evidence that NEMCH abused this privilege.
What is more, NEMCH is shielded from the defamation claim because an employer who
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 conditional privilege because the
reasons for Martinez’s termination “were a pretext for unlawful retaliation.” Pl’s Opposition to
Def.’s M. for Summ. J. at 13. This court, however, has found no unlawful retaliation, so
NEMCH’s conditional privilege remains intact.
94 Bratt, 467 N.E.2d at 129.
95 Axton-Cross Co., Inc. v. Blanchette, No. 942764H, 1994 WL 879570, at *2 (Mass.
Super. Ct. Oct. 17, 1994).
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provides a reference to a potential employer is also protected by the conditional privilege.96
And, Martinez has offered no evidence to suggest that NEMCH abused this privilege either. In
fact, Martinez admitted that Leong-Lum made several complimentary remarks about her during
the telephone call.97 Such remarks are patently inconsistent with any malice.
Martinez’s defamation claim also fails because she invited Leong-Lum’s statements. In
Burns v. Barry,98 the plaintiff similarly had a friend pose as a prospective employer seeking
references. In affirming the lower court’s decision, the Massachusetts Supreme Judicial Court
held: “[T]he oral statements made by [the defendant] to the plaintiff’s associate were made in
response to telephone inquiries initiated at the behest of the plaintiff, . . . and were conversations
to which he listened . . . . Such statements as [the defendant] made to one purporting to be a
‘prospective employer’ were privileged.”99
Finally, Martinez’s defamation claims fail because she has not submitted evidence of any
damages suffered by her. Damages are an essential element in a defamation claim, and a
plaintiff must demonstrate the he “suffered special damages and must set forth these damages
specifically.”100 Martinez has not met this burden. No real employment prospect was lost, and
96 Mulgrew, 574 N.E.2d at 391-92 (holding that statements made by plaintiff’s supervisor
to hiring committee regarding plaintiff’s past job performance were protected by a qualified
privilege).
97 Leong-Lum had volunteered that Martinez did a great job, was very creative, and was a
great person and friend. Def.’s Statement of Undisputed 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).
1818
Martinez’s feelings upon listening to Leong-Lum’s statements are inadmissible.101
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is ALLOWED.
AN ORDER WILL ISSUE.
/s/ Joseph L. Tauro
United States District Judge
101 Burns, 228 N.E.2d at 732.
1919
Publisher Information
Note* This page is not part of the opinion as entered by the court.
The docket information provided on this page is for the benefit
of publishers of these opinions.
Ronald M. Jacobs
Poppel & Associates
223 Lewis Wharf
Boston, MA 02109
617-725-0008
Assigned: 02/22/2002
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing New England Medical Center, Inc.
(Defendant) Matthew P. Poppel
Poppel & Associates
223 Lewis Wharf
Boston, MA 02109
617-725-0008
Assigned: 02/22/2002
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing New England Medical Center, Inc.
(Defendant) Paul F. Wood
Law Office of Paul F. Wood PC
101 Tremont Street
Boston, MA 02108
617-482-9300
617-451-1991 (fax)
pfwatty@rcn.com
Assigned: 12/28/2001
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing Teresa Martinez
(Plaintiff)
2020