A recent decision from the United States Court of Appeals for the First Circuit affirmed the protections of Massachusetts' conditional privilege afforded to statements made by a psychiatrist to an employer in connection with a  fitness for duty evaluation by the psychiatrist.

In an opinion authored by Circuit Judge Bruce M. Selya on Oct. 1, 2019, the First Circuit in Zeigler v. Rater, No. 18-2150, 2019 U.S. App. LEXIS 29496, __ F.3d __ (1st Cir. Oct. 1, 2019), affirmed the district court's entry of summary judgment in favor of the defendant Dr. Michael Rater, holding that no reasonable jury could find that Dr. Rater, a psychiatrist, abused the common law conditional privilege in Massachusetts when he disseminated an allegedly libelous report to an employer about an employee's fitness to return to work after medical leave. In so ruling, the First Circuit provided further assurance to companies who turn to outside medical professionals when evaluating employees' fitness-for-work. The ruling confirmed that medical professionals may reasonably consider credible "anecdotal" accounts of coworkers in evaluating an employee's fitness and may also, to some extent, deviate from "best practices"  without losing the protections of the conditional privilege.

The plaintiff-appellant, Alan Zeigler, worked as an information technology professional at Atrius Health, a provider of medical services in Massachusetts. In early 2015, Zeigler began reporting to a new supervisor who allegedly made repeated derogatory remarks about Ziegler's age. As a result of these remarks, Zeigler contended that he had a panic attack in April 2015, prompting him to take a medical leave of two months. Prior to his expected return, Zeigler told a representative from Atrius's human resources department that he had been so angry that the supervisor "might have got[ten] hurt" had "it been somebody else who had not had the skills to keep [their anger] under control." Atrius subsequently required Zeigler to undergo a psychiatric evaluation to determine his fitness to return to work.

Atrius retained Dr. Rater to perform the evaluation. Dr. Rater received and reviewed documents supplied by Atrius, including medical records from Zeigler's primary care physician, and then conducted an in-person examination of Zeigler in June 2015. Rater issued a written report on June 26, 2015, stating that Zeigler was not yet fit to return to work under the same manager. After a follow-up visit with Zeigler in July 2015, in which Zeigler reported he had been attending anger management therapy, Dr. Rater advised Atrius that Zeigler was now fit to return to work.

However, on Zeigler's first day back at Atrius, two coworkers separately provided written reports to Atrius' human resources department of unsettling interactions with Zeigler, reporting, among other things, that Mr. Zeigler seemed "clearly agitated" and spoke of his intent to sue Dr. Rater for malpractice. After receiving these reports, Atrius' human resources personnel had Zeigler escorted from the premises and placed him on paid administrative leave.

Atrius then consulted again with Dr. Rater regarding Zeigler, and provided him with the co-worker's written accounts of Zeigler's behavior. Dr. Rater then issued a written report on Aug. 10, 2015, in which he concluded that Zeigler would be unfit to return to work for at least three additional months (though he did not recommend that Zeigler be terminated). Dr. Rater did not meet with Zeigler again prior issuing the August report. Following the issuance of Dr. Rater's August report, Zeigler was placed on unpaid leave, and later resigned from Atrius.

Zeigler contended that two statements contained in Dr. Rater's August report were libelous: (1) a statement that Zeigler was not "psychologically able to provide high-level project management expertise … as he is too distracted and emotionally attached to his grievance issues"; and (2) a statement that Zeigler would not be able to "work effectively with coworkers to assure adherence to quality standards" or "provide leadership direction and guidance …." Zeigler, 2019 U.S. App. LEXIS 29496, at *9-10.

While Dr. Rater had argued that the challenged statements were nonactionable expressions of opinion, the district court found it unnecessary to reach that question, as the statements were conditionally privileged, as a threshold matter. The First Circuit agreed, noting that "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." Id. at *12-13.

Particularly relevant to the case at hand, this conditional privilege applies "when an employer discloses 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." Id. at *13 (citing Bratt v. Int'l Bus. Machs. Corp., 467 N.E.2d 126, 131 (Mass. 1984)). The First Circuit noted that Dr. Rater and Atrius "plainly shared a common interest in evaluating Zeigler's fitness to return to work," regardless of the fact that Dr. Rater was not employed by Atrius. In so finding, the court stated that there was no reason to apply a different standard to statements made by an outside psychiatrist, as opposed to statements made by a psychiatrist employed directly by the company.

Zeigler argued, however, that Dr. Rater had abused the conditional privilege and relinquished its protection. Indeed, the protection for statements made in a fitness-for-work evaluation is not absolute, and statements that are otherwise privileged may lose their protections if the plaintiff can establish that the speaker published them recklessly or with actual malice. Zeigler, 2019 U.S. App. LEXIS 29496, at *15.

The court rejected Zeigler's argument and found that Zeigler failed to present sufficient evidence to establish recklessness or malice such that the conditional privilege would be lost.

First, Zeigler argued that Dr. Rater recklessly relied on the "biased" accounts of Zeigler's coworkers when recommended in August that Zeigler be placed on leave for three additional months. However, the court rejected Zeigler's contention that it was improper for Dr. Rater to consider such accounts, instead finding it "evident that a medical professional charged with evaluating a subject's fitness for duty may rely on anecdotal evidence" so long as that evidence "is comprised of plausible first-hand accounts." Id. at *17. This indicates that it was reasonable for Dr. Rater to rely, at least in part, on outside accounts (especially since Atrius's HR and legal counsel had determined them to be credible).

The court similarly rejected Zeigler's contention that Dr. Rater was reckless in deeming  Zeigler unfit to work in August, even if it was arguable that the best practice would have been for him to conduct an additional in-person examination before reaching his conclusion. While "[s]imply showing a deviation from best practices, without more, does not suffice to ground a finding of recklessness," the court's language here nevertheless suggests that medical professionals can further insulate themselves against defamation or libel claims by conducting sufficient in-person evaluations prior to issuing their opinions. Id. at *20. In any case, the court did not suggest that Dr. Rater had, in fact, been negligent.

Finally, the court rejected Zeigler's argument that Dr. Rater acted with actual malice such that he would not be protected by the conditional privilege. Even though the record was clear that Dr. Rater knew of Zeigler's threat to sue him at the time that Dr. Rater issued the August report, the court found Dr. Zeigler's recommendation to lack any indicia of animus, especially in light of Dr. Rater's recommendation that Zeigler be placed on leave (as opposed to terminated). Moreover, even if Dr. Rater had harbored some antipathy toward Zeigler, in order for the conditional privilege to be lost, Zeigler needed to show that such antipathy was Dr. Rater's chief motivation for authoring the challenged statements. Finding that Zeigler failed to provide such evidence beyond "rank speculation," the court affirmed judgment in favor of Dr. Rater. Id. at *24.

In Zeigler, the First Circuit's endorsement of a broad conditional privilege provides further protection for companies and medical professionals who share the common interest in promoting safe working environments. The First Circuit's ruling should enhance employers' abilities to seek the opinion of outside medical professionals to gauge an employee's fitness for work, and reassure those medical professionals that they will not be subject to liability for an adverse recommendation, so long as their opinions are not made recklessly or with actual malice toward the employee.

Patrick P. Dinardo is a partner with Sullivan & Worcester in Boston, and co-director of the firm's litigation department. Christopher K. Shields is an associate at the firm, focusing his practice on complex commercial litigation.