Phyllis J. Dragonas vs. School Committee of Melrose & others
Case Details
- Citation
- 64 Mass. App. Ct. 429
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Massachusetts appellate court reversed summary judgment for defendants on teacher's defamation and age discrimination claims, finding genuine issues of material fact remained regarding whether principal's statements were false, whether conditional privilege was abused by malice, and whether proffered performance assessment was pretextual age discrimination.
Excerpt
Phyllis J. Dragonas vs. School Committee of Melrose & others. No. 04-P-98. Middlesex. March 3, 2005. - September 6, 2005. Present: Lenk, Kafker, & Katzmann, JJ. Practice, Civil, Summary judgment. Libel and Slander. Anti-Discrimination Law, Age, Employment, Prima facie case. Employment, Discrimination. A Superior Court judge improperly granted summary judgment in favor of the defendants (a school committee, a school superintendent, and a school principal) on a teacher’s claim of defamation, arising out of certain statements made by the principal, where genuine issues of material fact existed regarding whether the allegedly defamatory statements were false, and whether the conditional privilege of the principal to make such statements was abused due to malice [437-440]; likewise, a trial was warranted on the teacher’s claim of age discrimination under G. L. c. 151B, § 4(1C), where a fact finder could determine that the principal’s proffered assessment of the teacher’s performance was false and not a good faith judgment [440-445]. Civil action commenced in the Superior Court Department on November 9, 2001. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Alice Olsen Mann for the plaintiff. Mary Jo Hollender for the defendants. Daniel Burke and Charles Martin. Kafker, J. Phyllis Dragonas, a foreign languages teacher, brought this action against the school committee of Melrose; Charles Martin, former superintendent of the Melrose public schools; and Daniel Burke, principal of Melrose High School, alleging defamation and age discrimination. She claimed that Burke defamed her when he made derogatory comments about her at a meeting with parents concerning an overseas trip to be chaperoned by Dragonas. She also claimed age discrimination arising out of the failure to reappoint her as the lead foreign languages teacher in the school system. A Superior Court judge allowed the defendants’ motion for summary judgment. We reverse. Background. Because this is an appeal from a summary judgment decision, we view the evidence in a light most favorable to the plaintiff as the nonmoving party. Dattoli v. Hale Hosp., 400 Mass. 175, 178 (1987). Dragonas, who was born on November 26, 1930, has been employed as a foreign languages teacher in the Melrose school system since 1971. In addition to teaching Spanish and French, she served in various administrative roles during this time. In the summer of 1998, she was appointed lead teacher of foreign languages for the 1998-1999 school year. Lead teacher was a one-year stipendiary position that required appointment by the high school principal and approval by the superintendent. Lead teachers were responsible for teaching four classes daily and performing various administrative tasks on behalf of the foreign languages department. In addition to her teaching and administrative duties, Dragonas served as the coordinator of the German-American Partnership Program (GAPP), a student exchange program that she cofounded in 1975. In this program, German students would visit Melrose every other fall to study; Dragonas would chaperone Melrose students in Hamburg, Germany, for a month-long stay the following spring. Burke assumed the position of principal of Melrose High School in July, 1999, and, shortly thereafter, reappointed Dragonas as lead teacher for the 1999-2000 school year, which Martin approved. Burke met with Dragonas on December 3 and 22, 1999, to discuss his concerns about her ability to oversee the upcoming GAPP trip to Germany from April 12 to May 12, 2000. Burke stated in his affidavit and deposition that his concern arose from the following: (1) foreign language department and GAPP budgeting issues; (2) problems with two German students’ home placements during their stay in Melrose in October, 1999; (3) Dragonas’s attendance in Focus classes in October, 1999; (4) difficulties that tenth grade students traveling to Germany might have with the Massachusetts Comprehensive Assessment System (MCAS) examination upon their return in May, 2000; (5) her fluency and familiarity with German studies compared with those of a German language teacher; and (6) a report he received from two parents that, on a prior GAPP trip to Germany, Dragonas had left Hamburg during the Easter vacation and had been unavailable to a seriously ill student who was without any adult supervision. Dragonas stated in her affidavit and deposition that at the December 22 meeting she either denied the reports or at least attempted to explain them. She also requested that Burke put any issues he had in writing, although Burke denies this. Both agree that after Dragonas cited her twenty-five years of GAPP leadership and mentioned that people in the community would be upset if she were relieved of her GAPP duties, Burke warned her to “not go political because [he] had been there.” At this meeting, Burke also informed Dragonas that her position as lead teacher of foreign languages would be abolished at the end of the 1999-2000 school year. Burke stated that his concerns about the upcoming GAPP trip did not abate in the spring of 2000. In addition to the unresolved housing and MCAS issues, he questioned the prudence of allowing one student with poor attendance and grades to go to Germany. On March 3, 2000, Burke issued a memorandum to Dragonas stating his “desire to reorganize lead teachers . . . along the lines of the MCAS Curriculum and testing areas.” He also stated, “I have a number of serious concerns about the Foreign Language Program at Melrose High School that need[] . . . to be addressed.” On March 7, 2000, Martin met with Dragonas and Barbara Quinlan, the business manager for the Melrose schools, and informed Dragonas that he would recommend that her lead teacher position be abolished at the end of the school year due to the MCAS. Martin then offered Dragonas the option of retiring at the end of the school year and suggested that if she backdated her notice of departure to December 23, 1999, she would be eligible to receive a $10,000 sick leave buyback bonus. If she decided to retire, Martin also offered to secure a part-time position for her as administrative assistant to the middle school principal. Dragonas indicated that she was not interested. Martin gave Dragonas a week to accept the offer in case she changed her mind, which she did not. On March 9 or 11, Burke convened an “emergency” meeting of twenty-five to thirty GAPP parents to discuss his concerns about Dragonas’s leadership of the impending trip to Germany. Burke stated that he did not invite Dragonas to the ninety-minute meeting because he felt that “her overall aggressiveness and defensiveness” would prevent him from getting an “objective and fair view” from the parents. According to parents in attendance, Burke questioned Dragonas’s competency to lead the GAPP program and her ability to speak German and stated that, on a previous trip, she had left a student ill and unattended while on a sightseeing trip. In their affidavits, the parents stated that Burke made disparaging comments about Dragonas’s character, claiming she had accused him of sexual harassment (which she denied in her deposition). They also attested that Burke stated that Dragonas was someone who would “rip your face off.” Burke testified that when he asked the parents whether they wanted him to find another teacher to accompany the students to Germany, they were still willing to have Dragonas accompany the students because of her experience and the trip’s imminence. In response to some of the parents’ objections to Dragonas’s absence from the meeting, Burke apologized to her shortly thereafter. When Dragonas returned from Germany in May, 2000, Burke did not ask her to participate in hiring new teachers for the foreign languages department — even though this was one of the lead teacher’s responsibilities — because he expected her position to be eliminated. Dragonas stated that she felt she was treated as a “persona non grata.” After the school committee decided to retain the lead teacher position (see note 7, supra), Martin posted the position within the foreign languages department and advertised the position in the Boston Globe. Three people submitted applications: Dragonas; Mariastella Cocchiara, an Italian and Spanish teacher for twenty-one years in the Melrose public schools, whom Burke had personally encouraged to apply; and a teacher at Salem High School. A hiring committee comprised of Burke; Thomas Brow, the Melrose Middle School principal; and Gayle Means, an elementary school principal, interviewed the prospective candidates. As summarized by Burke in his affidavit, based on the review of the written applications and interviews, “Mr. Brow, Ms. Means and I agreed that Ms. Cocchiara was far better qualified for the position of Lead Teacher for foreign languages than plaintiff.” The hiring committee concluded that “Cocchiara had a strong educational and employment record which, when combined with her additional professional accomplishments, indicated that she would be capable of assuming a leadership role in the foreign language department. Moreover, her computer skills and interpersonal skills led to the conclusion that she was better suited for the position than plaintiff, notwithstanding the fact that plaintiff had served in the same or similar position previously.” Burke added that Cocchiara had specific ideas, based on her training and prior experience, about how to integrate computers and the Internet into the curriculum, which was important due to State directives and the school committee’s recent decision to invest in a new computer-driven language laboratory. Cocchiara had also explained how she would incorporate foreign languages into the elementary school. Burke stated that Cocchiara was committed to bringing the foreign language teachers together around a common goal and eliminating the “division” and “frustration” they experienced under Dragonas’s leadership. Burke also “felt that plaintiffs prior service during the time I observed her had been lackluster at best.” In addition, Burke said that Dragonas interviewed poorly, particularly with respect to her vision for the future and her ideas for integrating technology into the curriculum. In his view, Dragonas essentially stated that she would continue doing what she had done in the past. Her responses to technology questions were unsatisfactory. When asked what “www” and “URL” meant, Dragonas did not know. Burke also stated that Dragonas did not have a plan for introducing foreign languages to fifth graders. Conversely, Dragonas stated that she did not recall being asked any substantive, in-depth questions about her plans for the elementary schools or technological integration. She described herself as a “visionary.” She also said that she “knew what the needs of the department were . . . and . . . was providing resources under certain conditions and circumstances which were budgetary restraints . . . and . . . was hoping . . . what [she] was providing for could be perpetuated for the future . . . and that we could have a good . . . elementary school program.” Her sense was that she was “doing everything that needed to be done and more.” She also described her computer skills as “adequate” and pointed out that she had taken at least two computer courses for instructional purposes prior to 2000; however, she did not indicate that she had shared this informatian with the hiring committee. She denied friction or divisions in the department or that her performance was in any way deficient. The record also contained evidence that Dragonas had very favorable references in regard to her handling of the GAPP program and her position as lead teacher, including from the former superintendent of the Melrose public schools, who was then the Commissioner of Education. In June, 2000, the hiring committee unanimously recommended Cocchiara, who was twenty-four years Dragonas’s junior. Martin subsequently approved Cocchiara’s appointment. Dragonas commenced the present action in November, 2001, seeking damages and injunctive relief for, inter alla, the defendants’ alleged violations of G. L. c. 151B, § 4(1C) (counts one and two), and, against Burke and Martin only, aiding and abetting violations of c. 151B (count four), and defamation (count six). Following discovery, the defendants moved for summary judgment on all counts of the complaint, which Dragonas opposed. After a hearing, the judge granted summary judgment for the defendants and allowed, in part, the defendants’ motion to strike certain materials submitted by Dragonas in opposition to the motion. On September 25, 2003, judgment was entered for the defendants. On October 1, 2003, Dragonas moved for reconsideration. On the same day, a different judge denied Dragonas’s motion to strike portions of the summary judgment materials submitted by the defendants. While the motion for reconsideration was pending, Dragonas filed a timely notice of appeal from the judgment and related orders. After the judge declined to reconsider the summary judgment decision, Dragonas filed a second notice of appeal. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), [365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Defamation. To prove defamation, the 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” (footnote omitted). White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004), citing Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). Dragonas’s defamation claim is based upon Burke’s statements to the GAPP parents at the meeting in early March, 2000, which she claims impugned her professional character and competence. Specifically, Dragonas finds fault with (1) Burke’s statement that on a previous GAPP trip, she went on a sightseeing trip and was unavailable to an ill and unattended student in Hamburg; and (2) Burke’s statements questioning her fluency in German. She also highlights his “hyperbolic” statement that she was someone “who would rip your face off.” In their memorandum in support of summary judgment, the defendants argued that the statements were either true, nonactionable matters of opinion, or subject to Burke’s conditional privilege as Dragonas’s supervisor. The motion judge held that Burke was entitled to summary judgment because, even assuming that his comments were false and defamatory, he had a conditional privilege to express his concerns to parents. We conclude that (if false) the statement that Dragonas left a sick child unattended while she was out of town sightseeing was defamatory, particularly when it was combined with other derogatory comments Burke allegedly made about Dragonas’s temperament and competence. The truth of the statement is a disputed fact based on the record before us, as is the question whether Burke acted out of malice and thus lost the protection of the conditional privilege. As the school principal, Burke had a conditional privilege to convey relevant information regarding a teacher to parents planning on sending their children overseas in the teacher’s care. The school and the parents shared a common and legitimate interest in the communication of such information. See Sheehan v. Tobin, 326 Mass. 185, 190-191 (1950); Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987); Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 558 (2003). That information would include the teacher’s sense of responsibility for the students under her supervision, her temperament, and her command of the language of the country they were visiting. A conditional privilege may, however, be lost if the defendant abuses it. The burden of proving abuse of the privilege is on the plaintiff. Foley v. Polaroid Corp., 400 Mass. at 95. “The conditional privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively.” Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. at 558, and cases cited. Lastly, the conditional privilege may 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.” Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987). This “may consist either in a direct intention to injure another,” Bratt v. International Bus. Machs. Corp., 392 Mass. 508, 514 (1984), quoting from Retail ers Commercial Agency, Inc., petitioner, 342 Mass. 515, 521 (1961), or an “intent to abuse the occasion [giving rise to the privilege] by resorting to it ‘as a pretence,’ ... or ‘reckless disregard’ of the rights of another.” Ezekiel v. Jones Motor Co., 374 Mass. 382, 390 (1978). Reckless disregard of the rights of another can occur through “unnecessary, unreasonable or excessive publication.” Bratt v. International Bus. Machs. Corp., supra at 515. 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. Sack on Defamation § 9.3.1 (3d ed. 2005). See Restatement (Second) of Torts § 603 comment a, at 292 (1977) (“[I]f the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resentment or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege”). 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” (emphasis supplied). Ezekiel v. Jones Motor Co., 374 Mass. at 390 n.4. See Novecon Ltd. v. Bulgarian-Am. Enterprise Fund, 190 F.3d 556, 567 (D.C. Cir. 1999) (court looks to “primary motive”). Compare Restatement (Second) of Torts § 603 comment a, at 292 (abuse of privilege if publication is “made solely from spite or ill will”) (emphasis supplied). In the instant case, there is both a “privileged” and an “unprivileged” explanation for Burke’s conduct at the meeting. The privileged explanation was that he was thoroughly and honestly briefing the parents about all of his concerns regarding Dragonas’s conduct and competence to ensure that they made a fully informed decision about sending their children to Germany with her. The unprivileged explanation is that he used (he occasion as a pretext to demean a teacher he personally disliked, to generate parental opposition to her participation in a program that she had founded and cared deeply about, and to pressure her into retirement. Considering the facts in a light most favorable to Dragonas, we hold that a triable issue of fact remains whether Burke abused his conditional privilege. It could be inferred from the tone and substance of Burke’s statements — that Dragonas might “rip your face off” and that she had accused him of sexual harassment — that his motivation was not primarily to further a legitimate interest. There was also evidence that Burke had an ongoing antagonistic relationship with Dragonas. See Ezekiel v. Jones Moto
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