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Attorney Bradford Louison Appeals Court Brief

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
ESSEX COUNTY

No. 2014-P-1827
_______________________


RUTH QUINN BERDELL
Plaintiff-Appellant
v.
BELLA WONG AND SUZY LITTLEFIELD
Defendants-Appellees
________________________

ON APPEAL FROM A JUDGMENT OF THE
MIDDLESEX COUNTY SUPERIOR COURT
NO. MICV2012-01725


________________________

BRIEF FOR THE DEFENDANT-APPELLEE
BELLA WONG
________________________


Bradford N. Louison
(BBO #305755)
Email: blouison@lccplaw.com
Louison, Costello, Condon & Pfaff, LLP
101 Summer Street
Boston, MA 02110
617-439-0305
617-439-0325 facsimile


TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES............................... ii
STATEMENT OF ISSUES PRESENTED FOR REVIEW........... 1
STATEMENT OF THE FACTS RELEVANT TO ISSUES PRESENTED FOR REVIEW......................................... 2
ARGUMENT........................................... 15
A. Standard of Review...................... 15

B. There Was No Intentional Interference
With Contractual Or Advantageous
Relations By Wong....................... 18

C. Berdell Cannot Prevail On The Claim For Defamation............................... 27

D. There Is No Evidence Of A Civil Conspiracy............................... 33

CERTIFICATE OF COMPLIANCE.......................... 35

CERTIFICATE OF SERVICE............................. 36

TABLE OF AUTHORITIES

Cases

Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994)............................... 33

Alba v. Sampson, 44 Mass. App. Ct. 311, 690 N.E.2d 1240 (1998)........................................ 20

Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357, 358 (1991).............. 16

Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 976 N.E.2d 830 (2012).............................. 32

Blackstone v. Cashman, 448 Mass. 255, 860 N.E.2d 7 (2007)....................................19,20,22, 23

Champagne v. Commissioner of Correction, 395 Mass. 382, 386, 480 N.E.2d 609, 612 (1985)........... 16,32

Disend v. Middlebrook Sch., 33 Mass. App. Ct. 674, 604 N.E. 2d 54 (1992).................................. 28

Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663–665, 429 N.E.2d 21 (1981)............................... 20

Harrison v. NetCentric Corp., 433 Mass. 465, 476–479, 744 N.E.2d 622 (2001)........................... 20,22

King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488 (1994)........................................22,23,27

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 575 N.E. 2d 734 (1991)............................. 15

Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998)............................................. 33

LaLonde v. Eissner, 405 Mass. 207, 539 N.E.2d 538 (1989)............................................. 16

Mulgrew v. Taunton, 410 Mass. 631, 574 N.E.2d 389 (1991)............................................. 32

Netherwood v. Am. Fed. & Mun. Emples., Local 1725, 53 Mass. App. Ct. 11, 757 N.E.2d 257 (2001)........ 30,31

Noonan v. Staples, Inc., 707 F. Supp. 2d 85 (D. Mass. 2010).............................................. 28

Oberg v. City of Taunton, 972 F. Supp. 2d 174 (D. Mass. 2013)........................................ 28

Pederson v. Time, Inc., 404 Mass. 14, 532 N.E.2d 1211 (1989)...........................................15,16

Phelan v. May Dept. Stores Co., 443 Mass. 52, 819 N.E.2d 550 (2004).................................. 27

Ravnikar v. Bogojavlensky, 438 Mass. 627, 782 N.E.2d 508 (2003)......................................... 27

Rosenblatt v. Baer, 383 U.S. 75, 15 L. Ed., 597, 86 S.Ct. 669 (1966)................................... 31

Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E. 2d 282 (2000)............................................. 29

Sereni v. Star Sportswear Mfg. Corp., 24 Mass.App.Ct. 428, 432–433, 509 N.E.2d 1203 (1987)............... 21

Steranko v. Inforex, Inc., 5 Mass.App.Ct. 253, 273, 362 N.E.2d 222 (1977), S.C., 8 Mass.App.Ct. 523, 395 N.E.2d 1303 (1979)................................. 21

Stone v. Essex Cnty. Newspapers, Inc., 387 Mass. 849, 330 N.E.2d 101 (1975).............................. 31

Weber v. Community Teamwork, Inc., 434 Mass. 761, 781, 752 N.E.2d 700 (2001)..................19,20,21,23,24

Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476, 589 N.E.2d 1241 (1992).......... 19,21

Rules

Mass. R. Civ. P. 56............................. 15,16

 

Statement of Issues Presented For Review

I. The trial judge was correct in entering summary judgment for Bella Wong in that there was no evidence to support any of Ruth Berdell's allegations even in the light most favorable to her.
II. In the event that the Court believes that Bella Wong's state of mind is a consideration in the determination of the intentional interference with contractual relations claim, many of the facts that Ruth Berdell claims supports her position on state of mind are disputed or not in the record at all; and Ruth Berdell has fabricated a narrative by creating the appearance of undisputed facts by the use of quotation marks and underlining.
III. There was no intentional interference with contractual or advantageous relations by Bella Wong and no facts to support such a claim;
IV. Ruth Berdell was an at-will employee who was terminated. Bella Wong had an employment contract with the Wellesley Public Schools which was not renewed.
V. The trial judge was correct in entering summary judgment for Wong on the claim for defamation because there was no defamatory statements made or published, Bella Wong is a public official who enjoys a conditional privilege which was not abused or lost, Ruth Berdell is a public official who must prove that Bella Wong acted with a reckless disregard for the truth for which there also was no evidence.
VI. There is no evidence of a civil conspiracy and summary judgment was correct.

Statement of the Facts Relevant to the Issues Presented For Review

The plaintiff/appellant Ruth Quinn Berdell (“Berdell”) commenced a civil action in Middlesex Superior Court against the defendant/appellees Bella Wong (“Wong”), the former Superintendent of the Wellesley Public Schools, and Suzy Littlefield (“Littlefield”), Chair of the Wellesley School Committee, as a result of being terminated from her position in March, 2012 as the head of the business office in the Wellesley School Department.
Berdell filed a three count Complaint. Count One alleged tortious interference with advantageous business relationships, alleging that Wong interfered with her advantageous business relationship with the Wellesley School Department. Count Two alleges defamation in that Berdell alleges that Wong made and published false, disparaging, material and misleading and defamatory communications intentionally and with malice. Count Three alleges that Wong and Littlefield engaged in a “civil conspiracy” with a common design or agreement to do a wrongful act.
Berdell was an at-will employee for the Wellesley School Department. Her position was School Business Administrator. Her duties included oversight of the business office, purchasing, transportation, grants, and accounts payable and receivable. Wong was her supervisor. Wong was appointed as Superintendent of Wellesley Public Schools in or around July of 2007 and served under a contract for employment. Berdell applied for a position with the School Department in 1986 and was hired in April of that year. (Deposition of Berdell, p. 23) A.150, 152. Bella Wong became the Superintendent in 2007. (Deposition of Berdell, p. 27) A.154. In 1996, Berdell became School Business Administrator. (Deposition of Berdell, p. 33) A.160.
The facts found by the court are as follows: In February of 2011, Wellesley School officials disclosed that invoices had not been sent out to families participating in the school lunch program, and that the school system was owed $169,000 in uncollected school lunch fees. Subsequently, the Wellesley School Committee arranged for an audit to be conducted of the food services accounts and the business office (the "Powers and Sullivan Audit"). In November of 2011, a second audit by the Massachusetts Association of School Business Officials ("MASBO") resulted in a report that made recommendations for improvements. School Committee members felt that Berdell was responsible for the problems with the food service accounts. A number of critical news articles followed the release of the two audits in September and October of 2011. A report or reports connected Berdell with what it characterized as "sloppy accounting practices in the business office." The timing of this and other criticisms of the School Department was sensitive as the Town was facing a vote on a $5 million budget override.
Although Berdell's relationship with Littlefield had been good up to September or October, and she had received a positive performance evaluation from Wong at the end of October, Wong, in consultation with Littlefield and the School Committee, placed Berdell on paid administrative leave on November 18, 2011. By letter dated February 9, 2012, Wong informed Berdell of her intent to terminate Berdell's employment. In the letter, Wong detailed the reasons for the notice to terminate, including, "Failure to follow explicit directions," "Recent Audit of Revolving Accounts," "Lack of Self-Accountability for errors," "Lack of delegation and over-centralization of control," "Overreaching departmental boundaries," "Failure to support critical grant applications," "Inability to work with colleagues without fostering negative work climate," and "Misinforming School Committee and the Superintendent." Berdell claims that the stated reasons were pretextual. By letter dated March 13, 2012, Wong confirmed Berdell's termination.
By November, 2011, members of the School Committee were unhappy with Wong's leadership as well –- there was a consensus that they would not extend her contract. Consequently, Wong announced on November 9, 2011 that she would step down as Superintendent, and did so at the end of the school year.
Berdell's facts are as follows: Berdell alleged in her Complaint that in 2011 going forward there were some issues in the School Department with regard to school lunch fees and other accounts. (Complaint, Pars. 1-14) A. 007-009.
On November 18, 2011, Wong informed Berdell that Berdell was being placed on paid administrative leave. On March 13, 2012, Berdell was terminated by a letter from Superintendent Wong. (Complaint, Pars. 1-14) A. 007-009.
Prior to the termination, Wong announced her resignation from the School Department as a result of a conversation with the School Committee acknowledging that they were not going to extend her contract. Wong left the School Department after Berdell was terminated. (Complaint, Pars. 1-14) A. 007-009.
Berdell was an at-will employee with the Wellesley School Department. She had no written contract or promise or other expectation of continued employment. Upon her termination Berdell retired with a pension. (Complaint, Pars. 1-14) A. 007-009.
Berdell alleges that Wong and Littlefield conspired or “orchestrated” her termination in an attempt to preserve Wong's professional reputation in light of the issues with regard to the school lunch fees. (Complaint, Par. 5) A. 008.
Berdell alleges that Wong and Littlefield knew or should have known that placing Berdell on paid administrative leave would communicate to the community that Berdell had committed misfeasance or malfeasance or convey a derogatory meaning. (Complaint, Par. 16) A. 009.
Berdell alleges that there was a “communication” which was false. (Complaint, Par. 17) A. 009.
Berdell alleges that Wong and Littlefield were motivated by malice and bad faith and by terminating Berdell further communicated the false and defamatory statement about Berdell (Complaint, Par. 19) A.010.
Berdell was placed on administrative leave and by letter dated March 13, 2012, Berdell was terminated. The specific reasons for the termination were never disclosed by Wong. (Exhibit C). A. 340 In that letter Wong stated, “I will release the following statement later to representatives of the local media later on today: ‘in the past months you have made repeated inquiries as to the status of Ruth Quinn Berdell's employment with the Wellesley Public Schools. At the time of those inquiries, school administration and school committee responded that we would inform you of any change in status. I am writing that Ms. Quinn Berdell's employment with the Wellesley Public Schools has ended, effective March 13, 2012. The reason for the change of status is deemed a personnel matter, and there will be no further public comment at this time.'” (Exhibit C) A. 340.
Berdell stated that there is a lot of negative information on the internet about her, such as, “one of the big things is it referred to sloppy accounting practices in the business office as reported in the audit...” (Deposition of Berdell, pp. 77-78) A. 204-205.
Berdell did not know from where the expression “sloppy accounting practices” came. She said that she had been told that the expression “sloppy accounting practices” was in the Powers & Sullivan audit and also in the MASBO audit. (Deposition of Berdell, p. 78) A. 205.
Berdell does not recall the words “sloppy accounting practices” in the audit but states that “the press would report that the audits had stated that there were sloppy accounting practices in the business office which was, in fact, not the case. They gleaned that information from the report and think they might have heard it at the School Committee meetings but I can't say for certain.” (Deposition of Berdell, pp. 79-80) A. 206-207.
Berdell does not know if Wong said anything about sloppy accounting practices. (Deposition of Berdell, p. 80) A. 207.
Berdell does not know what Bella Wong said to any reporters. (Deposition of Berdell, p. 80) A. 207.
There was never anything in the audit about sloppy accounting practices but Berdell says, “it was reported in the paper and they used it in quotes.” (Deposition of Berdell, p. 81) A. 208.
A reporter by the name of Lee Gaines used the word “sloppy” in her reporting but Berdell does not know where Gaines obtained that word. (Deposition of Berdell, p. 82) A. 209.
Berdell talked to the reporter to give her side of the story. (Deposition of Berdell, p. 82) A. 209.
The sloppy accounting practices expression came out after Berdell talked to the reporter. (Deposition of Berdell, p. 83) A. 210.
Some people said things on Twitter about her but she does not know who. (Deposition of Berdell, p. 85) A. 212.
In support of her claim of a conspiracy between Wong and Littlefield to fire her, Berdell believes there was a conflict in what they said in e-mails. Berdell states that she does not know why she was fired. (Deposition of Berdell, pp. 87-88) A. 214-215.
Bella Wong resigned in November of 2011 around the time that Berdell was placed on administrative leave. (Deposition of Berdell, p. 90) A. 217.
Berdell says that Wong resigned because the School Committee was not going to renew her contract. (Deposition of Berdell, p. 90) A. 217.
Berdell believes that the conspiracy's purpose consisted of “Bella want[ing] … to appear to the public that she was falling on the sword for issues in the business office.” (Deposition of Berdell, p. 91) A.218.
She believes that Littlefield and Wong conspired to fire Berdell to preserve Wong's reputation. (Deposition of Berdell, p. 92) A. 219.
Berdell also says that Wong resigned because the School Committee was not happy with her. (Deposition of Berdell, p. 92) A. 219.
Berdell states that Wong defamed her in the community by “[doing] nothing – she had it within her power to correct the inaccuracies that were reported in the paper, and she did nothing to correct those.” (Deposition of Berdell, p. 93) A. 220.
Berdell has no evidence that neither Wong nor Littlefield said anything defamatory to anyone about her. (Deposition of Berdell, pp. 93-94) A. 220-221.
Berdell claims that Wong terminated her because she was looking for a scapegoat. (Deposition of Berdell, p. 97) A. 224.
Berdell says she was scapegoated for issues coming up around the school lunch bills and the problems with the billing. (Deposition of Berdell, pp. 97-98) A. 224-225.
Berdell says she was terminated because of the audit that had occurred earlier which resulted in negative press. (Deposition of Berdell, p. 98) A.
Berdell says that pressure was put on Wong by the School Committee. (Deposition of Berdell, p. 99) A. 226.
Berdell has no evidence to support her claim in her Complaint that in November of 2011, “Wong . . . and Littlefield formed a plan that Wong would resign from her position effective at the end of the school year...with the intent to ultimately terminate [Berdell] and cast blame and responsibility for a plethora of issues on [Berdell].” (Complaint, par. 13) A. 009.
Berdell has no evidence to support the allegation that there was a “plan” other than seeing an e-mail discussing what Littlefield would say about Wong's resignation as Superintendent. (Deposition of Berdell, pp. 105-106) A. 232-233.
Berdell believes that there was a conspiracy between Wong and Littlefield to terminate her and somehow preserve Wong. (Deposition of Berdell, p. 107) A.234.
Berdell's basis for this conspiracy is because Wong “look[ed] like she made some noble stance.” (Deposition of Berdell, p. 107) A. 234.
Berdell claims that Wong and Littlefield “communicated to the community that Berdell had committed misfeasance and malfeasance...“ (Deposition of Berdell, pp. 107-108) A. 234-235. Berdell's only basis for this is, “comments had been made in public school committee meetings by parents about misappropriation of funds, mishandling of funds, all of which Bella and Suzy Littlefield heard, and, again, did nothing to correct the impression that that was going on” or “correct the misstatements made by parents in the public session.” (Deposition of Berdell, p. 108) A. 235.
Berdell has no evidence that there was any other communication about her conduct by anyone. (Deposition of Berdell, p. 108,112) A. 235,239.
Berdell said that her name was released to the press upon the payment of her unused vacation time and that another employee also got a significant payment but only Berdell's name was released. She does not know who released that name and cannot say that it was Wong or Littlefield. (Deposition of Berdell, p. 112) A. 239.
Berdell testified that Wong never said anything in public about Berdell at a School Committee meeting that she found inflammatory or derogatory. (Deposition of Berdell, p. 113) A. 240.
Berdell testified that she has no evidence that Bella Wong had any personal malice against her. (Deposition of Berdell, p. 115) A. 242.
Berdell testified that there were no issues with Wong outside of work. (Deposition of Berdell, p. 117) A. 244.
Berdell knows nothing about what Wong said to the press and does not know if she actually communicated to the press. (Deposition of Berdell, p. 118) A. 245.
Berdell claims that there was an article which said that Wong said she could only account for Berdell's unused vacation time during the period of time when she was the Superintendent. (Deposition of Berdell, p. 118) A. 245.
Berdell says that there was no particular statement about vacation time made by Wong. (Deposition of Berdell, p. 126) A. 253.
Wong was only the Superintendent from 2007 yet Berdell worked for the School Department since 1986. Berdell supervised the business office and was responsible for their operations. The Superintendent (Wong) supervised Berdell (Deposition of Berdell, p. 123) A. 250.
Berdell said that there were false impressions “out there” and Wong and Littlefield did nothing to try to correct the false information. She claims that the false information was from the newspaper reports. (Deposition of Berdell, p. 125) A. 252.

Argument
A. Standard of Review
In summary judgment, the moving party bears the burden of affirmatively demonstrating that there are no genuine issues of material fact on each relevant issue and that the summary judgment record shows that it is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). When the moving party establishes the absence of a triable issue, the burden shifts to the non-moving party to allege specific facts establishing the existence of a genuine issue of material fact. Pederson, 404 Mass. at 17. The non-moving party cannot defeat summary judgment by resting on its pleadings or mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). In considering a motion for summary judgment, the court may only consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that would be admissible in evidence at trial. Mass. R. Civ. P. 56(c), (e).
The Appeals Court may consider any ground supporting the judgment. Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985); Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117, 120 (1991).
The trial judge was correct in entering summary judgment for Wong in that there was no evidence to support any of Berdell's allegations.
In the event that the Appeals Court believes that Wong and Littlefield's states of mind are a consideration in the determination of an intentional interference with contractual relations, many of the facts that Berdell uses to support her position are not in the record. Berdell has fabricated a narrative by creating what appears to be actual undisputed facts when, in fact, they are not.
In Berdell's brief there are, what appear to be, undisputed facts or statements in quotation marks which give the appearance of undisputed statements. However a careful review of the joint appendix shows that many of the alleged facts and quotes which Berdell uses to support her claims are neither actual facts or quotes nor undisputed facts. Many are arguments disguised to look like facts. On page 9 of Berdell's brief referencing A. 109 and A. 542, is a statement relative to being thrown under the bus that is disputed. On page 16 of Berdell's brief, Berdell claims Wong and the School Committee discussed the prospects of firing Berdell in executive session, which is disputed. (A. 115 and A. 329) On page 19 the underlined sentences beginning, “resigning would allow Wong to avoid the public humiliation . . .” A. 119, A. 330-331 and A. 559 are disputed. The references to the record on page 21 are disputed. The quotation “graceful exit” on page 22 of the brief referencing to A. 119 is mischaracterized. Wong references the words in an argumentative e-mail to Littlefield. There was no agreement for the so-called graceful exit. In fact, it was just the opposite, but Berdell has mischaracterized it. The statement on page 25 of Berdell's brief about scamming the system is in quotation marks giving the impression that it is an undisputed statement when, in fact, it was denied. A. 123-124. On page 26 the underlined statement at A. 124, A. 238 is disputed as is the word “sloppy” on page 26 and page 27.
Berdell's case is obviously weak by noticing what is missing from the lawsuit. There is no count for wrongful termination, breach of contract count, or a violation of public policy.
Wong was the Superintendent of Schools and Berdell's supervisor. She was empowered to hire and fire. It was her decision and her responsibility to terminate Berdell. As an at-will employee, Berdell was not entitled to a just cause standard for termination.
B. There was No Intentional Interference with Contractual or Advantageous Relations by Wong.

Berdell claims that Wong and Littlefield interfered with her longstanding advantageous relationship with the Wellesley School Department. In order to make out a claim for intentional interference with advantageous business relations, Berdell must prove that: (1) she had an advantageous relationship with a third party; (2) that Wong and Littlefield knowingly induced the breaking of the relationship; (3) Wong and Littlefield interfered with the relationship through improper motive or means; and (4) Berdell was harmed by the their conduct. Blackstone v. Cashman, 448 Mass. 255, 260 (2007), citing Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001).
As Wong and Littlefield were officials of the employer acting within the scope of their employment, Berdell must show "actual malice," that is, "a spiteful, malignant purpose, unrelated to the legitimate corporate interest." Id. at 261, quoting Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). Berdell has no evidence of actual malice on the part of either Wong or Littlefield. At her deposition, Berdell acknowledged that she could not identify anything outside of work that caused her firing, that she had no personal problems with either Wong or Littlefield, and that the audit was the basis for the School Committee getting rid of her and causing Wong to resign. Exhibit A, pp. 116-117. While Berdell argues that the motivations behind a person's actions are state of mind questions that should be left to the jury, she has presented no evidence of malice for the jury to consider. An inference of malice must be based on probabilities rather than mere possibilities. Alba v. Sampson, 44 Mass. App. Ct. 311,315 (1998); Blackstone v. Cashman, 448 Mass. 255, 860 N.E.2d 7 (2007); Weber v. Community Teamwork, Inc., 434 Mass. 761, 781, 752 N.E.2d 700 (2001). The “actual malice” at issue here goes to the third element, whether the interference was “improper in motive or means.”
The Supreme Judicial Court has often considered intentional interference with advantageous relations in the context of employment. See, e.g., Weber, supra at 781–783, 752 N.E.2d 700; Harrison v. NetCentric Corp., 433 Mass. 465, 476–479, 744 N.E.2d 622 (2001); Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 663–665, 429 N.E.2d 21 (1981). In Gram, a case involving the firing of an employee whose supervisors believed he was consistently violating company policies, the SJC affirmed that “corporate officials” acting “within the scope of their employment responsibilities” are “privileged to act [unless they do so] out of malevolence, that is, with ‘actual' malice.” Id. at 663, 429 N.E.2d 21. The rule assigning liability to corporate officials applies only when their actions are motivated by actual malice, and not merely implied. Malice has particular force because ‘their freedom of action directed toward corporate purposes should not be curtailed by fear of personal liability.' ” Id. at 663–664, 429 N.E.2d 21, quoting Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 273, 362 N.E.2d 222 (1977), 8 Mass. App. Ct. 523, 395 N.E.2d 1303 (1979). The SJC has further defined “actual malice” in these circumstances as “a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476, 589 N.E.2d 1241 (1992), quoting Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 432–433, 509 N.E.2d 1203 (1987). The “actual malice” standard for proving improper motive or means on the part of a corporate official is a burden placed on Berdell, not a defense that must be proven by Wong.
The actual malice standard applies when “the claim is asserted against an individual official of the employer.” Weber, supra at 781, 752 N.E.2d 700. The actual malice standard is applied to high level corporate officers as well as directors involved in management. See Id. (executive director); Harrison v. NetCentric Corp., supra at 478, 744 N.E.2d 622 (chief executive officer); King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488 (1994) (shareholder-directors actively involved in management). Because Wong was the Superintendent of Schools, the highest level position within the School Department, she is entitled to the corporate official/actual malice standard. Berdell has no evidence of malice.
Personal gain or personal financial gain is not enough to establish actual malice. In Blackstone, the court said that the motivation of personal gain, including financial gain is not enough to satisfy the improper interference requirement. King v. Driscoll, 418 Mass. 576, 638 N.E.2d 488 (1994). In fact, in Blackstone, the defendant Cashman was making threats of violence and the court found that if the threats Cashman made were part and parcel of the expression of his business concern, this would not necessarily imply that he acted with actual malice. Personal financial gain and personal dislike will not warrant an inference of the requisite ill-will to establish actual malice. King at 587. Therefore, even with Berdell's theory of liability wherein Berdell was fired and that Wong, in order to preserve her reputation, was allowed to resign to “save face” there is not the requisite necessary ill-will because pursuant to King and Blackstone, personal gain is insufficient to prove actual malice.
Wong did not interfere with Berdell's advantageous relationship because Wong and the School Department were one and the same. Wong was Berdell's supervisor and had the power to terminate Berdell from her at-will position. Therefore, there was no interference. Wong denies that the element requiring the defendant to have “knowingly” caused the breaking of the advantageous relationship has been met because she obviously terminated Berdell from her at-will position.
The SJC said in Weber that an abrupt termination of an employee and a failure to explain the reasons for the termination may have been unfair and poor management practice but not malice. It said that evidence that a corporate official engaged in “sloppy and unfair business practices” is an insufficient basis to negate the official's broad privilege to terminate an at-will employee. It said there was no spiteful malignant purpose unrelated to the legitimate corporate interest in the plaintiff's termination. The behavior must rise to the level of personal hostility or ill-will to satisfy the malice standard. Weber at 783.
In her own brief, Berdell sets forth important facts and claims negating actual malice. Berdell states at page 14 that, “during fall of 2011, WPS [Wellesley Public Schools] continued to face harsh public criticism and Wong and Littlefield had heightened concern over whether the pending budget override would pass, and over the increasing negative perception of the school district.” The perceptions dealt with financial problems including, but not limited to, the audit of the business office and the uncollected student lunch fees. These were important considerations facing the School Committee and Wong. If the public believed that the School Department was being mismanaged, the budget override might not pass. Thus, retaining the head of the business office and the Superintendent were important considerations, clearly not ones unrelated to the legitimate corporate interest. Quite the contrary, they were entirely related to the legitimate School Department interests.
On page 15 of Berdell's brief she states, “[n]egative press resulted from the release of the audit report as town residents began to question the competency of the school district leadership.” The brief goes on to quote matters from the record supporting that statement. In footnote 7, page 15, Berdell describes an e-mail from Littlefield to Wong, “[e]very board member [of the school committee] that I talk to has asked about the review, the questions are getting more pointed as time goes by. Our credibility is being questioned as a School Committee. The school district...had been constantly in the news for reports on food service reports on audits or on a janitor that was stealing from the schools. There was a series of negative articles about the school district in the paper every week...there was criticism of the school committee.” Berdell was the head of the business office and most of the criticisms were directed at the functions for which she was in charge. There can be no malice if Berdell's claims were related to the corporate interests.
Berdell argues that Littlefield and Wong conspired to fire her in order to allow Wong to leave with her reputation intact. However, Berdell was an at-will employee. Wong was employed under a contract. An at-will employee can be terminated at any time. A contract employee, unless he or she breaches the contract, has a right to continued employment until the terms of the contract expire. Here, the School Committee was unhappy with both Berdell and Wong. However, it could not terminate Wong before her contract expired without breaching her contract. Prior to the expiration of the contract, the School Committee made it known that it would not extend or renew Wong's contract. This is a common procedure. This does not mean that they were giving Wong a “graceful exit.” A contract employee is entitled to continued employment until the contract expires. An employer cannot wait until the last day of an employee's contract to announce that they will not be extending it, particularly when a replacement needs to be found. The School Department needed time in order to find a replacement Superintendent and could not wait until the end of Wong's term to replace her.
Allowing Berdell to bring a suit against Wong would do what the SJC in King v. Driscoll wanted to avoid, that is, to “convert the general rule regarding the termination of at-will employees . . . into a rule that requires just cause to terminate an at-will employee." King at 582.
C. Berdell Cannot Prevail on the Claim for Defamation.

To withstand a motion for summary judgment for defamation Berdell must show that: (1) Wong published a false and defamatory statement about her to a third party; (2) the statement could damage her reputation in the community; (3) Wong was at fault for publishing the statement; and (4) the statement caused Berdell economic loss or is actionable without proof of economic loss. Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003).
Berdell alleges defamation by conduct. She claims that Wong and Littlefield communicated a message that Berdell engaged in wrongdoing by placing her on administrative leave and then terminating her and that the defendants failed to correct the false public perception of such wrongdoings. In Phelan v. May Dep't Stores Co., 443 Mass. 52, 57-58, (2004), the SJC determined that “defamatory publication may result from the physical actions of a defendant in the absence of written or spoke communication.” However, there was no physical action by Wong. Berdell claims that Wong failed to correct news reports or public statements but this conduct cannot constitute defamation as there is no "publication" involved in failing to act.
There is no such thing as defamation by silence. The Superintendent of Schools cannot silence statements made by parents at a public meeting. Berdell cannot maintain this action simply because Wong did not stand up at a School Committee meeting and correct other people's statements.
Because Berdell is considered a public official, Berdell must also provide proof of actual malice by clear and convincing evidence. Actual malice is interpreted to mean the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false. Oberg v. City of Taunton, 972 F. Supp. 2d 174 (D. Mass. 2013); Noonan v. Staples, Inc., 707 F. Supp. 2d 85 (D. Mass. 2010); Disend v. Middlebrook Sch., 33 Mass. App. Ct. 674, 604 N.E. 2d 54 (1992); Rotkiewicz v. Sadowsky, 431 Mass. 748, 730 N.E. 2d 282 (2000).
In any event, Wong did not publish any oral or written statement whether defamatory, false, or if true, which was made with malice.
Berdell argues that the timing of placing Berdell on leave, just after Wong's resignation letter, suggested to the public that Berdell had engaged in financial wrongdoing and “[t]he imputation of a crime is defamatory per se.” p. 45. This argument is preposterous. No one has alleged that Berdell committed any crimes.
Berdell's allegations that Wong defamed her by claiming that Wong could only account for her accrued vacation time during the period of time that Wong was the Superintendent is disputed and not a fact in the record.
Similarly, Wong never made a statement to the effect that Berdell engaged in sloppy accounting practices. That statement was never said by anyone at the School Department and was not even part of the audit. That phrase was coined by the media.
Berdell was a public official. On page 3 of Berdell's brief, she describes her duties. She was a high ranking official of the School Department. Her duties as business administrator included oversight of the business office, purchasing, transportation, grants, accounts payable, accounts receivable, etc. (page 3 of Berdell's brief, A. 103). As a public official, in order to state a case of defamation, Berdell must prove that the statements alleged to have been made were made with actual malice. Netherwood v. Am. Fed. & Mun. Emples., Local 1725, 53 Mass. App. Ct. 11, 757 N.E. 2d 257 (2001).
In Netherwood, the Appeals Court found that the plaintiff, Francis Netherwood, was the Director of Maintenance and Transportation for the Amherst/Pelham Regional School District, a position not unlike Berdell's. The Appeals Court in Netherwood said the issue of whether a particular plaintiff is a public official is determined by whether the person's position is one that invites public scrutiny and discussion apart from that brought on by the controversy at issue. Netherwood at 11.
There was significant public scrutiny over Berdell's business office about, among other things, the failure to collect lunch money. Other relevant considerations to this case in Netherwood include the employee's remunerations and duties, his or her participation in decisions on public issues and the impact of the government position on everyday life. Netherwood's duties were almost identical to Berdell's, i.e., he supervised an administrative staff of a school department and had a managerial role with substantial responsibilities. The court in Netherwood found that given his duties, his level of compensation, the debate about his duties and his supervisory responsibilities, that there was no error in the judge's determination that Netherwood was a public official for the purposes of his defamation claim. Berdell's duties and responsibilities were the same as the plaintiff's in Netherwood, and she is a public official who must demonstrate by clear and convincing evidence that the subject statements allegedly made by Wong were made with actual malice. Wong made no such statements in any event. The same should be found as to Berdell. Actual malice means that defamatory falsehoods were published with knowledge that it was false or with reckless disregard of whether it was false. Stone v. Essex County Newspapers, Inc., 367 Mass. 849 at 864, 330 N.E.2d 161 (1975). The United States Supreme Court in Rosenblatt v. Baer, 383 U.S. 75, 85, 15 L.Ed.2d 597, 86 S.Ct. 669 (1966) stated that a public official was, at the very least, among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. 383 U.S. at 86.
Berdell says in her brief on page 46 that Wong is also a public official who enjoys a conditional privilege as to statements made while performing her official duties.
Any alleged statements made by Wong were made in conjunction with her official duties. She did not abuse or lose the conditional privilege. She did not make any statements, much less any with knowledge of any falsity or reckless disregard for the truth. To the extent that Wong made any statements, she was protected by the conditional privilege. Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623 (2012); Mulgrew v. Taunton, 410 Mass. 631 (1991). Although conditional privilege was not argued by Wong in the Superior Court, the Appeals Court can consider any ground supporting the judgment. Champagne v. Commissioner of Corrections, 395 Mass. 382, 386 (1985).
Berdell clearly indicates that Wong neither made nor published disparaging or defamatory comments. The fact of the matter is that Berdell was a terminated public official and her termination was newsworthy. The termination may have caused an unfavorable attitude toward her, but no false statements were made. The reasons for the termination were not disclosed to the public.
D. There is No Evidence of a Civil Conspiracy.
Berdell contends that Wong and Littlefield conspired to save Wong's reputation by sacrificing hers. To make a case for civil conspiracy, Berdell must show first, "a common design or an agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement." Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994); see, e.g., Kurker v. Hill, 44 Mass. App. Ct. 184, 189-190 (1998). Berdell relies on the intentional interference with advantageous business relations and defamation claims as the tort underlying the conspiracy.
The School Committee and the Superintendent of Schools are not unlike the Board of Directors and the CEO of a corporation. They have the right to discuss policies and plans and make decisions that might be unfavorable to an employee. Such a discussion doesn't become a “civil conspiracy” whenever there is an adverse employment action. There was not much of a conspiracy when the School Committee decided to let Wong go. Berdell says in her brief at page 19, that “members of the School Committee were ‘very unhappy with where the district was and how [Wong's] leadership was going.” A.118 “By early November 2011, the majority of the members of the School Committee were disappointed with Wong's leadership and performance and did not want to extend her contract.” Berdell cannot claim that there was a conspiracy between Littlefield (only one member of the School Committee) and Wong if the entire School Committee was unhappy and made the decision not to extend Wong's contract.
As stated by Berdell numerous times in her deposition, she has no evidence of a conspiracy.
Bella Wong respectfully requests that the Court affirm the summary judgment.


Appellee,
Bella Wong,
By her attorney,


Bradford N. Louison (BBO# 305755)
Louison, Costello, Condon & Pfaff, LLP
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Fourth Floor
Boston, MA 02110
blouison@lccplaw.com
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Certificate of Compliance

Pursuant to Rule 16(k), Massachusetts Rules of Appellate Procedure, I hereby certify that the foregoing brief complies with the rules of court that pertain to the filing of briefs, including without limitation M.R.A.P. 16(a) (6), 16(e), 16(f), 16(h), 18 and 20.

__________________________
Bradford N. Louison

Dated: July , 2015

 

 

 

 


CERTIFICATE OF SERVICE

I, Bradford N. Louison, hereby certify that on the _________ day of July, 2015, I served the foregoing by causing a copy to be directed to:

Laura R. Studen
Lawrence P. Murray
Susan E. Stenger
BURNS & LEVINSON, LLP
125 Summer Street
Boston, MA 02110

Leonard H. Kesten,
Brody, Hardoon, Perkins & Kesten, LLP
One Exeter Plaza
Boston, MA 02116


__________________________________ Bradford N. Louison

 

 

 

 

 

 

 

 

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