Psychiatrist Retaliated After Legal Threat, 1st Circ. Told
By Aaron Leibowitz
September 4, 2019
A psychiatrist committed libel when he told Atrius Health an employee was unfit to return to work, the employee’s attorney told the First Circuit on Wednesday, saying the psychiatrist was illegally retaliating after he learned the employee might sue him.
Even though Dr. Michael Rater was protected by so-called conditional privilege when he was contracted to evaluate Alan Zeigler’s ability to continue working at Atrius, Rater acted maliciously and therefore can still be held liable for defamation, said Chip Muller of Muller Law LLC.
Rater initially cleared Zeigler to return to work after he completed anger management classes, but he reversed course after problems arose on Zeigler’s first day back in the office. At that point, Rater — who knew Zeigler was threatening to sue him, according to court documents — looked into the matter further and received emails from three of Zeigler’s co-workers who raised concerns about his conduct. It was not immediately clear why Zeigler had threatened to sue Rater.
“When [Rater] got only three emails from people he’d never met, who apparently had personal animus against Zeigler, he switched his opinion 180 degrees,” Muller told the three-judge panel.
U.S. Circuit Judge Sandra L. Lynch questioned whether there was any evidence that the emails, as well as Rater’s consideration of them, pointed to any bad faith or personal animus. But Judge David J. Barron suggested that Rater’s reversal and his failure to speak directly to Zeigler during the latter investigation could ultimately weigh in Zeigler’s favor.
“Couldn’t a reasonable jury think [Rater] was pretty quick to pull the trigger … after learning that a guy might sue him?” Judge Barron said. “Couldn’t a reasonable jury come to that conclusion on these facts?”
An attorney for Rater, Rebecca Capozzi of McCarthy Bouley Barry & Morgan PC, countered that even if Rater had some bias in reaching his opinion, he couldn’t be held liable for defamation unless malice was the sole driving factor behind his actions.
“Even if you assume some bias, there is insufficient evidence that was the motivating factor in publishing the allegedly defamatory statements,” Capozzi said.
U.S. District Judge Indira Talwani granted Rater’s summary judgment motion in late 2017, saying the statements he made in his assessments were shielded by a conditional privilege. Even assuming Rater’s statements met the elements of a libel claim, Massachusetts law gives employers a conditional privilege to disclose defamatory information about an employee when doing so is “reasonably necessary” to serve its “legitimate interest in the fitness of an employee to perform his or her job,” the judge wrote.
Zeigler’s 2015 complaint also named Atrius and its employee Christopher Joseph as defendants. Joseph became Zeigler’s manager at the beginning of that year and “regularly made several types of degrading comments” about his age and repeatedly told him to find a new career, Zeigler said.
That April, Zeigler, who was in his late 50s at the time, went to see his primary care physician because he was experiencing severe chest pain, Zeigler said. His primary care physician told him he needed to reduce his stress level because he was at risk of having a heart attack.
A few days later, Zeigler had a meeting with Joseph and human resources about Joseph’s comments, after which he had a panic attack and went home, according to court documents. After that incident, Zeigler’s primary care physician suggested he apply for leave under the Family and Medical Leave Act.
Atrius Health approved his FMLA request, and when he called that June about returning to work, human resources told him he would first need to take a psychological examination. After Rater ultimately concluded that Zeigler was not fit to return, Atrius placed him on indefinite unpaid leave and, that October, he resigned.
He alleged that he was compelled to resign because a “continuous pattern of discriminatory and harassing actions made his working conditions intolerable, difficult and unpleasant.”
Zeigler is represented by Chip Muller of Muller Law LLC and Chetan Tiwari.
Rater is represented by Rebecca Capozzi and Robert L. Bouley of McCarthy Bouley Barry & Morgan PC.
Atrius Health Inc. and Joseph are represented by Amanda Marie Baer and Robert Leo Kilroy of Mirick O’Connell.
The case is Zeigler v. Rater, case number 18-2150, in the U.S. Court of Appeals for the First Circuit.