Zeigler v. Rater

United States Court of Appeals
For the First Circuit

No. 18-2150

ALAN ZEIGLER,

Plaintiff, Appellant,

v.

MICHAEL RATER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Lynch, Selya, and Barron,
Circuit Judges.

Chip Muller, with whom Muller Law, LLC was on brief, for
appellant.
Rebecca G. Capozzi, with whom Robert L. Bouley and McCarthy,
Bouley, Barry & Morgan, P.C. were on brief, for appellee.

October 1, 2019
 SELYA, Circuit Judge. This 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.

I. BACKGROUND

We 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.

Prior to his expected return that June, Zeigler spoke by

telephone with an Atrius human resources representative. During

- 2 -
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.

Atrius 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.

In 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.

In a 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

- 3 -
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.

Zeigler 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.

On 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

- 4 -
with Zeigler to Centofanti verbally and, at Centofanti's request,

followed up with e-mails.

At 10:59 a.m., George e-mailed the following message to

Centofanti:

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

At 12:07 p.m., Fountaine sent the following e-mail to

Centofanti:

Alan Zeigler stopped by my office this morning
around 10:00 or so . . . . I'm not sure if he

- 5 -
was venting, but it was a strange one-sided
conversation.

It was the first time I had seen him in a long
time - I said 'hi Alan, nice to see you. It's
been a while!' Alan agreed, and then added 'I
was ready to come back in June but was not
allowed to. I used all of my accrued time and
then 'they' realized they had to let me come
back[.]' He continued to talk about issues
with Chris Joseph. He stated that his last day
in the office, he had a meeting with Chris J.
and HR and he was so angry that he left right
after the meeting and could not recall driving
home . . . . He had to go to the hospital,
his EKG was abnormal, he had a panic attack
. . . . He stated that Chris J told him that
he was older and should consider a different
career, then commented that he had been doing
this for 10 years and he knew how to perform
his job. He stated that he was told he needed
anger management. He stated his wife contacted
someone to advise Alan had the flu, and then
they started receiving harassing emails.

He spoke about other specifics as well, but I
don't remember the details - at one point I
started to block him out because he was going
on for about 10 minutes and I had no frame of
reference so I couldn't follow him. I just
kept saying 'I'm sorry Alan, hope everything
works out[.]'

He did make a comment about his lawyer -
indicating that Chris J had made a comment
that was inappropriate.

I thought it was bizarre - it felt strange.
This was the first time I had seen him in
months, and he immediately started spitting
out details about incidents that had allegedly
transpired while he was out . . . which I had
not been involved with so I couldn't even
grasp the information. It was definitely
weird. I tried to be positive, change the
subject . . . no luck.

- 6 -
 After receiving these accounts, Centofanti met with

Zeigler and informed Zeigler that coworkers had reported

uncomfortable interactions with him.1 Centofanti placed Zeigler

on paid administrative leave, and security personnel escorted him

from the building, collecting his access card and keys.

Kirk Hager, the Director of Field HR Operations and

Employee and Physician Relations as well as the Director of Labor

at Atrius, stated in his deposition that he, Centofanti, and legal

counsel for Atrius decided to consult with Scope and Dr. Rater

about Zeigler's fitness for duty following Zeigler's ephemeral

return to work. Hager, who was on vacation when the decisionmaking

process began, stated that he believed Centofanti and legal counsel

decided what documents would be sent to Dr. Rater. Upon his return

from vacation, Hager approved that compendium of documents (which

included George's and Fountaine's written accounts) and authorized

the document transmission to Scope. The record contains no

evidence about the exact date on which either Scope or Dr. Rater

received these materials.

In addition to George's and Fountaine's e-mails, Dr.

Rater received the following e-mail authored by Centofanti on

August 5, 2015 at 12:39 p.m.:

I had met with Alan (with security), with the
knowledge of his recent interactions with Jean

1 Although Zeigler was told that coworkers felt unsettled by
his comments, he was not informed of the coworkers' identities.

- 7 -
 George and Alida Fountaine. I asked Alan how
his day was going. He let me know that things
were good, he was settling in and people were
coming in and saying Hi. I informed him I had
received information that staff members had
expressed some discomfort with some of the
interactions he had with them. He asked who,
and if he could confront them. I let him know
that he cannot confront them and I am looking
into the concerns. I informed him he has to
leave the premises until further notice. I let
him know that he was not suspended, and he
would be placed on administrative leave and
will be paid during this time. I also let him
know that this action isn't punitive as we are
investigating the concern and will circle back
with him as soon as we are able. Alan then
informed me that he has filed an MCAD charge
and is suing Scope for [m]alpractice. Alan
thanked me. Victor (security) escorted him
out, collected his access card and keys.

Based on these new pieces of information and his

knowledge of Zeigler's full medical record, Dr. Rater issued a

written report on August 10, 2015 (the August report), in which he

concluded that Zeigler would be unfit to return to work for at

least three more months. Relatedly, he stated that coworkers'

accounts of Zeigler's "agitation and perseveration" illustrated

Zeigler's "lack of ability to perform his essential job functions."

Dr. Rater suggested that, while on leave, Zeigler should attend

weekly therapy sessions.

In Zeigler's view, the August report contained two

libelous statements. First, Dr. Rater wrote that Zeigler was not

"psychologically able to provide high-level project management

expertise or to coordinate overseeing or carrying out activities

- 8 -
needed to fulfill assigned initiat[ive]s and projects, as he is

too distracted and emotionally attached to his grievance issues."

Second, Dr. Rater wrote that Zeigler would not be able to "work

effectively with coworkers to assure adherence to quality

standards," "provide leadership direction and guidance to project

personnel," "direct and support staff to assure departmental

effectiveness," "interview, select, orient, or train employees,"

"maintain ongoing relationships with outside agencies,

consultants, and contractors," or "represent management on

inter-practice and/or cross organizational teams." These

statements appear in the "Summary and Conclusions" section of the

August report and are labelled in that document as "opinions . .

. stated to a reasonable degree of medical certainty."

In late August of 2015, Atrius placed Zeigler on unpaid

leave. Zeigler resigned in October of that year, approximately

one month after initiating suit against several defendants

(including Dr. Rater).2 Zeigler lodged two claims against Dr.

Rater, one for libel per se and one for medical malpractice. In

pretrial proceedings, Zeigler voluntarily dismissed the medical

malpractice claim. Following the completion of discovery, Dr.

Rater moved for summary judgment on the remaining libel claim.

2Zeigler's claims against the other defendants — Atrius and
Joseph — are not implicated in this appeal, and we make no further
reference to them.

- 9 -
After briefing and argument, the district court entered summary

judgment in Dr. Rater's favor, holding that the challenged

statements in the August report were conditionally privileged and

that Zeigler had offered insufficient evidence to show that Dr.

Rater abused the conditional privilege.3 This timely appeal

ensued.

II. ANALYSIS

We now reach the merits of this appeal, mindful that our

review of the entry of summary judgment is de novo. See Faiella

v. Fed. Nat'l Mortg. Ass'n, 928 F.3d 141, 145 (1st Cir. 2019). A

district court may grant summary judgment only if "the record,

construed in the light most congenial to the nonmovant, presents

no genuine issue as to any material fact and reflects the movant's

entitlement to judgment as a matter of law." McKenney v. Mangino,

873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311

(2018); see Fed. R. Civ. P. 56(a). Where, as here, the motion is

based upon the absence of a genuine issue of material fact, the

nonmovant bears the burden of producing sufficient evidence to

identify a dispute of fact that is more than "merely colorable."

3 In his amended complaint, Zeigler premised his libel claim
solely on statements made by Dr. Rater in the June report. When
opposing summary judgment, however, Zeigler referred only to
statements in the August report. The district court evaluated
Zeigler's libel claim exclusively through the lens of the August
report, and the parties have focused their appellate arguments
solely on the August report. Consequently, we confine our analysis
to the August report.

- 10 -
Faiella, 928 F.3d at 145 (quoting Flovac, Inc. v. Airvac, Inc.,

817 F.3d 849, 853 (1st Cir. 2016)).

Since this case is brought under diversity jurisdiction,

see 28 U.S.C. § 1332(a), state law provides the substantive rules

of decision, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

The parties agree that Massachusetts law controls, and we will

"honor the parties' reasonable agreement" on this point. Artuso

v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011).

Under Massachusetts law, a libel plaintiff must

establish that the defendant published "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., Inc., 809 N.E.2d 1034, 1036 (Mass. 2004)

(footnote omitted); see Sindi v. El-Moslimany, 896 F.3d 1, 13 (1st

Cir. 2018). A statement in the form of an opinion may be defamatory

but "is actionable only if it implies the allegation of undisclosed

defamatory facts as the basis for the opinion." Howell v. Enter.

Publ'g Co., 920 N.E.2d 1, 27 (Mass. 2010) (quoting Restatement

(Second) of Torts § 566 (Am. Law Inst. 1977)). An "expression of

opinion based on disclosed or assumed nondefamatory facts is not

itself sufficient for an action of defamation." Lyons v. Globe

Newspaper Co., 612 N.E.2d 1158, 1161 (Mass. 1993) (quoting Nat'l

- 11 -
Ass'n of Gov't Emps. v. Cent. Broad. Corp., 396 N.E.2d 996, 1001

(Mass. 1979)).

In asking that we uphold the district court's entry of

summary judgment, Dr. Rater submits that the challenged excerpts

from his August report constitute nonactionable expressions of

opinion. Like the district court, we deem it unnecessary to decide

this question: even assuming that the challenged statements were

actionable — a matter that we do not decide — they were nonetheless

protected by a conditional privilege. We explain briefly.

Massachusetts recognizes a conditional common law

privilege for otherwise defamatory statements "where the publisher

and the recipient have a common interest, and the communication is

of a kind reasonably calculated to protect or further it." Foley

v. Polaroid Corp., 508 N.E.2d 72, 79 (Mass. 1987) (quoting Sheehan

v. Tobin, 93 N.E.2d 524, 528 (Mass. 1950)). One variant of this

conditional privilege arises when the challenged publication "is

reasonably necessary to the protection or furtherance of a

legitimate business interest." Id. (quoting Bratt v. Int'l Bus.

Machs. Corp., 467 N.E.2d 126, 131 (Mass. 1984)). Another variant

arises when an employer "disclose[s] defamatory information

concerning an employee" that is "reasonably necessary to serve the

employer's legitimate interest in the fitness of an employee to

perform his or her job." Bratt, 467 N.E.2d at 129. The burden of

establishing the existence and applicability of a conditional

- 12 -
privilege rests with the publisher of the allegedly defamatory

communication (here, Dr. Rater). See Jones v. Taibbi, 512 N.E.2d

260, 270 (Mass. 1987).

The parties agree that Dr. Rater's statements in the

August report were, as an initial matter, conditionally

privileged. This is consistent with precedent from

Massachusetts's highest court — the Supreme Judicial Court (SJC)

— which makes it pellucid that a conditional privilege covers the

challenged statements. After all, the SJC recognizes a conditional

privilege in cases in which "the publisher and the recipient have

a common interest, and the communication is of a kind reasonably

calculated to protect or further it." Foley, 508 N.E.2d at 79

(quoting Sheehan, 93 N.E.2d at 528). Although Atrius did not

employ Dr. Rater, Atrius and Dr. Rater plainly shared a common

interest in evaluating Zeigler's fitness to return to work, and

the allegedly defamatory statements in the August report were

published in furtherance of that common interest. What is more,

the SJC has acknowledged the "settled" principle that "a

communication respecting the character of an employee . . . is

qualifiedly privileged if made in good faith by a person having a

duty in the premises to one who has a definite interest therein."

Bratt, 467 N.E.2d at 133 (alteration in original) (quoting Leonard

v. Wilson, 8 So. 2d 12, 13 (Fla. 1942)); see Doane v. Grew, 107

N.E. 620, 621 (Mass. 1915) (finding statements about former

- 13 -
servant's "character and capabilities" conditionally privileged

when made to prospective employer).

Finally, we note that the SJC already has approved a

conditional privilege for disclosures by an employer of medical

information relevant to an employee's fitness for duty. See Bratt,

467 N.E.2d at 129. In so holding, the SJC cited approvingly to a

district court opinion finding a Navy psychiatrist's statements

about a Navy engineer's fitness for duty conditionally privileged.

See id. at 133 (citing Hoesl v. United States, 451 F. Supp. 1170,

1176 (N.D. Cal. 1978), aff'd, 629 F.2d 586 (9th Cir. 1980) (per

curiam)). We see no reason why the SJC would treat the statements

of a psychiatrist referred to an employer by an intermediary for

the purpose of conducting a fitness-for-duty examination

differently than the statements of an internal psychiatrist

performing precisely the same task.

The existence of a conditional privilege, in and of

itself, does not fully insulate defamatory speech from tort

liability. A conditional privilege may be lost if that privilege

is abused. See Tosti v. Ayik, 437 N.E.2d 1062, 1065 (Mass. 1982).

The plaintiff must carry the burden of establishing abuse. See

Shore v. Retailers Comm. Agency, Inc. (In re Retailers Comm.

Agency, Inc.), 174 N.E.2d 376, 379 (Mass. 1961).

Massachusetts law recognizes two ways in which a

defendant may relinquish the protection of a conditional

- 14 -
privilege: by publishing statements recklessly or by publishing

statements with actual malice. See Mulgrew v. City of Taunton,

574 N.E.2d 389, 391 (Mass. 1991). Here, Zeigler urges us to find

that Dr. Rater's statements were made both recklessly and

maliciously. We separate this exhortation into its component

parts, first inquiring into Zeigler's claim of recklessness and

then inquiring into his claim of actual malice.

1. Recklessness. With respect to recklessness, it is

apodictic that a defendant whose statements are conditionally

privileged forfeits the privilege if the plaintiff proves, at a

minimum, that the challenged statements were "unnecessary,

unreasonable, or excessively published." Foley, 508 N.E.2d at 79.

If, say, communications are privileged only as between certain

parties, a defendant may lose the privilege by unnecessarily or

unreasonably publishing those communications to parties as to whom

they are not privileged. See Galvin v. N.Y., New Haven & Hartford

R.R. Co., 168 N.E.2d 262, 266 (Mass. 1960). So, too, a defendant

may act recklessly by publishing a statement "without reasonable

grounds for believing it was true," particularly if the statement

concerns "verifiable matters" that are "susceptible of precise

check." Shore, 174 N.E.2d at 381 (holding that trier of fact could

find reckless publication where defendant misreported plaintiff's

bankruptcy and criminal record).

- 15 -
 In this case, Zeigler makes no argument — and the record

contains no evidence — that Dr. Rater published the August report

excessively or to anyone other than Atrius and Scope (as to each

of whom the publication was conditionally privileged). Hence, his

claim of recklessness hinges on whether Dr. Rater had reasonable

grounds for deeming Zeigler unfit to perform his essential duties.

See id.

To this end, Zeigler's principal contention is that a

reasonable factfinder could determine that, in compiling the

August report, Dr. Rater recklessly relied on coworkers' biased

accounts of his ill-fated return to Atrius. Although Zeigler

asserts that Dr. Rater based the August report exclusively on the

coworker e-mails, the record simply does not support this

assertion. Both the August report and Dr. Rater's deposition

testimony make pellucid that he viewed those e-mails against the

backdrop of his own prior mental status examinations and Zeigler's

full medical record.

Even were we to assume that Dr. Rater's statements were

largely based on the coworker e-mails, no rational factfinder could

conclude, on this record, that Dr. Rater lacked reasonable grounds

for making those statements. As a general matter, we think it

evident that a medical professional charged with evaluating a

subject's fitness for duty may rely on anecdotal evidence — at

least when, as in this case, the anecdotal evidence is comprised

- 16 -
of plausible first-hand accounts. Cf. Sovie v. Town of North

Andover, 742 F. Supp. 2d 167, 176 (D. Mass. 2010) (noting that

defendant who authored memorandum outlining reasons for

plaintiff's termination "was entitled to rely" on other employees'

observations); Judd v. McCormack, 535 N.E.2d 1284, 1289 (Mass.

App. Ct. 1989) (explaining that defendant who signed letter

evaluating plaintiff's performance in training program could rely

on veracity of instructors' first-hand observations).

In this instance, the record makes manifest that Dr.

Rater had scant reason to question the coworkers' accounts. After

all, the e-mails did not issue from the ether: they were furnished

to Dr. Rater by Atrius human resources representatives, who found

the contents credible and concerning. Indeed, after receiving

George's and Fountaine's e-mails, Centofanti acted on them by

meeting with Zeigler with security personnel present. Centofanti

then directed a security officer to escort Zeigler from the

building and take Zeigler's access card and keys. Centofanti,

Hager, and Atrius's legal counsel subsequently determined, based

on this new information, that Dr. Rater should be contacted for

another assessment of Zeigler's fitness for duty. What is more,

the coworkers' e-mails collectively bore indicia of reliability in

that each contained mutually corroborative descriptions of

Zeigler's continuous fixation on his issues with Joseph.

- 17 -
 Last — but far from least — none of the three e-mails

(including Centofanti's) exudes the slightest whiff of personal

animus. All three e-mails indicated that the authors greeted

Zeigler cordially, and George went so far as to inform the human

resources department that she was eager to "help [Zeigler] in any

way."

To be sure, George noted Zeigler's statements about

suing Atrius; Fountaine recounted that Zeigler made "a comment

about his lawyer" and an "inappropriate" remark by Joseph;4 and

Centofanti mentioned Zeigler's assertion that he had filed a charge

against Atrius with the Massachusetts Commission Against

Discrimination (MCAD). But nothing in these e-mails suggests that

George, Fountaine, or Centofanti was bent on punishing Zeigler for

threatening to sue Atrius. The only concrete evidence in the

record — Dr. Rater's testimony that he considered the possibility

that at least George's e-mail might be tainted by personal

hostility but found any potential bias outweighed by the contents

of the e-mails and Zeigler's full medical record (which accord

with Dr. Rater's ultimate conclusion that Zeigler was unfit to

perform his essential duties) — cuts in Dr. Rater's favor. On

4
Although Fountaine stated in her deposition that Zeigler
informed her of his plan to sue Joseph during their August 4
encounter, her e-mail did not communicate that point explicitly.

- 18 -
this record, no reasonable factfinder could conclude that Dr. Rater

was reckless in giving credence to the coworker accounts.5

We likewise reject Zeigler's contention that a

reasonable factfinder could distill recklessness from Dr. Rater's

failure to conduct a third in-person mental status examination

before deeming Zeigler unfit to work. The record contains no

evidence that Atrius asked Dr. Rater to conduct another in-person

examination of Zeigler. Although Dr. Rater could perhaps have

sought permission to reevaluate Zeigler, a disagreement as to

whether Dr. Rater took the best possible course of action would

not make out a trialworthy issue about whether his statements were

published "without a reasonable basis for forming a belief in their

truth." Catrone v. Thoroughbred Racing Ass'ns of N. Am., 929 F.2d

881, 891 (1st Cir. 1991). Simply showing a deviation from best

practices, without more, does not suffice to ground a finding of

recklessness. Cf. Shore, 174 N.E.2d at 380 (explaining that

plaintiff must show more than "want of sound judgment" or "hasty

or mistaken action" to establish defendant's abuse of conditional

privilege (quoting Pecue v. West, 135 N.E. 515, 517 (N.Y. 1922))).

5 Of course, a defendant may act recklessly by publishing
inaccurate statements about matters that are susceptible of
precise verification (such as a bankruptcy or criminal record).
See Shore, 174 N.E.2d at 381. Here, however, coworkers'
impressions of their encounters with Zeigler were not verifiable
matters capable of being confirmed by quick reference to external
sources.

- 19 -
Even if a jury could find Dr. Rater negligent for assessing

Zeigler's fitness for duty without conducting yet another in-

person mental status evaluation — and we do not suggest that such

a finding would be warranted — the SJC has left no doubt that mere

negligence does not destroy a conditional privilege. See Bratt,

467 N.E.2d at 131.

That ends this aspect of the matter. No reasonable

factfinder could conclude that Dr. Rater abused the conditional

privilege by way of recklessness because of his reliance on the

coworker e-mails, his failure to perform a third in-person mental

status examination, or any combination thereof.

2. Actual Malice. Zeigler's remaining attempt to escape

the confines of the conditional privilege — actual malice — fares

no better. In this context, actual malice occurs when "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

Rest., Inc. v. Whitehall Co., 508 N.E.2d 113, 117 (Mass. App. Ct.

1987); see Doane, 107 N.E. at 622. Such an ulterior motive may

take the shape of "a direct intention to injure another," Dragonas

v. Sch. Comm., 833 N.E.2d 679, 687 (Mass. App. Ct. 2005) (quoting

Bratt, 467 N.E.2d at 131), or an "intent to abuse the occasion

[giving rise to the privilege] by resorting to it 'as a pretence,'"

- 20 -
id. (alteration in original) (quoting Ezekiel v. Jones Motor Co.,

372 N.E.2d 1281, 1287 (Mass. 1978)).

Evidence that a defendant simply disliked the plaintiff

or was partially motivated by personal animosity, without more, is

insufficient to establish actual malice. See id. at 688; see also

Sheehan, 93 N.E.2d at 530. If the publication was "made for the

purpose of protecting the interest in question, the fact that the

publication [was] inspired in part by resentment or indignation at

the supposed misconduct of the person defamed does not constitute

an abuse of privilege." Restatement (Second) of Torts § 603

cmt. a; see also Dragonas, 833 N.E.2d at 688. Rather, a defendant

cedes the protection of the conditional privilege through actual

malice only "if the publication [was] not made chiefly for the

purpose of furthering the interest which is entitled to

protection." Dragonas, 833 N.E.2d at 688 (emphasis in original)

(quoting Ezekiel, 372 N.E.2d at 1287 n.4).

Zeigler contends that a reasonable jury could find that

Dr. Rater deemed him unfit to work in order to punish him for

threatening suit against Dr. Rater and Scope. Although it is

undisputed that Dr. Rater knew about Zeigler's threat to sue for

malpractice at the time of the August report, Zeigler extrapolates

an entirely speculative theory of punitive animosity from this

meager kernel of evidence. To begin, the record is devoid of any

indication that Dr. Rater gave Zeigler's comments concerning

- 21 -
litigation any weight in compiling the August report. So, too,

the record contains nothing suggesting that Dr. Rater harbored any

ill will toward Zeigler because of those remarks. Indeed, Dr.

Rater's recommendation in the August report was measured and bore

no indicia of animus: rather than recommending that Atrius

terminate Zeigler, Dr. Rater recommended only that Zeigler seek

reconsideration of his fitness for duty after three additional

months of counseling.

To cinch the matter, even were we to assume that Dr.

Rater harbored some antipathy toward Zeigler due to his mention of

a suit, it would not be enough for Zeigler to show that such

antipathy constituted merely a part of his motivation for authoring

the challenged statements. See id. The conditional privilege

would be lost only if the evidence could support a finding that

Dr. Rater's statements were "not made chiefly for the purpose of"

providing an honest assessment of Zeigler's fitness for duty (the

interest underlying the conditional privilege between Dr. Rater

and Atrius). Id. (emphasis in original) (quoting Ezekiel, 372

N.E.2d at 1287 n.4); see Catrone, 929 F.2d at 890; Restatement

(Second) of Torts § 603 cmt. a. Even when viewed in the light

most favorable to Zeigler, the record reveals no evidence that

would permit such a finding. Dr. Rater maintained in his

deposition that the focus of the August report was his evaluation

of Zeigler's mental state and ability to perform his duties, and

- 22 -
Zeigler offers no evidence to contradict this testimony or

otherwise demonstrate a genuine dispute of material fact about Dr.

Rater's dominant motivation for disseminating the challenged

statements.

Generally speaking, actual malice may be inferred from

the parties' relationship and the circumstances surrounding the

publication. See Galvin, 168 N.E.2d at 266. Even so, courts are

not required to "draw unreasonable inferences or credit bald

assertions [or] empty conclusions" in adjudicating summary

judgment motions. Theriault v. Genesis HealthCare LLC, 890 F.3d

342, 348 (1st Cir. 2018) (alteration in original) (quoting Cabán

Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.

2007)). Here, Zeigler's rank speculation that Dr. Rater deemed

him unfit to work in order to punish him for the threat of

prospective litigation is insufficient to block Dr. Rater's quest

for summary judgment.

The short of it is that no reasonable factfinder could

conclude that Dr. Rater was motivated chiefly by retaliatory animus

when he declared Zeigler unfit to return to work in the August

report. Accordingly, Zeigler's claim of actual malice fails.

III. CONCLUSION

We need go no further. The district court correctly

found Dr. Rater's statements in the August report conditionally

privileged, and Zeigler has failed to summon sufficient evidence

- 23 -
to establish any abuse of that privilege. We hold, therefore,

that the district court did not err in granting summary judgment

in Dr. Rater's favor.

Affirmed.

- 24 -