Massachusetts Appeals Court Addresses Employee vs. Employee Defamation Claims

Issue March/April 2021 April 2021 By Catherine Scott
Labor & Employment Law Section Review
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Catherine Scott

In Lawless v. Estrella, 99 Mass. App. Ct. 16 (2020), the Massachusetts Appeals Court affirmed summary judgment in favor of a subordinate employee, Cheryl Estrella, in a defamation claim brought by her former supervisor, Diane Lawless. The plaintiff/supervisor had sued the defendant/employee claiming the defendant had made defamatory statements against her in the course of an internal investigation regarding the plaintiff’s employment. The Appeals Court affirmed summary judgment in favor of the defendant/employee on the grounds that her statements were non-actionable opinions of fact and were privileged because such statements were made in the context of an internal employment-related investigation.

Factual Background

The parties worked together as supervisor and subordinate between 2013 and 2014 in the treasurer’s office of the town of Freetown, Massachusetts (the “employer”). The defendant later transferred to a different department working for the town. In 2015, after the parties had stopped working together, the plaintiff/supervisor was involved in an altercation with another employee (the defendant’s replacement), and the employee complained about the plaintiff’s treatment of her.

The employer began an investigation into the plaintiff/supervisor’s behavior and requested that all current employees provide written statements regarding their experiences working with the plaintiff. In response to this request, the defendant drafted a six-page email and shared observations about working with the plaintiff, including that the plaintiff spent significant time “socializing” on her phone and frequently disparaged the town and the employer. The defendant stated that she believed the plaintiff created “an uncomfortable, abusive, and hostile work environment.” The defendant described the plaintiff as “belligerent, threatening, overbearing and [engaging in] psychological harassment.” The plaintiff/supervisor disagreed with the defendant’s characterizations.

The employer ultimately terminated the plaintiff’s employment after a three-day hearing and found that the plaintiff had engaged in misconduct, including, but not limited to, being impolite to employees and vendors, misleading the employer, downloading employee and taxpayer information after being placed on administrative leave pending the investigation, and failing to provide pension information to the employer’s insurance agency.

Legal Analysis

The plaintiff/supervisor brought an action with one count of libel per se against the defendant/employee for her email and involvement in the investigation into the plaintiff’s employment. The Superior Court granted summary judgment in favor of the defendant.

The Appeals Court agreed with the Superior Court’s analysis and first found that the statements in the defendant’s email were “statements of opinion” and, therefore, non-defamatory under Massachusetts law.1 The Appeals Court affirmed that whether a statement is one of fact or one of opinion for purposes of a defamation claim can be a question of law where the statement’s intent is unambiguous.

The Appeals Court also found that even if the defendant’s statements had been defamatory, they were conditionally privileged because they were made in the context of an internal investigation related to the plaintiff’s employment. The Appeals Court highlighted in particular the importance of ensuring that employees be able to make honest and open disclosures in the context of a workplace investigation without fear of being held liable for a claim of defamation. Finding that the defendant had only published the statements in the context of the investigation, and nowhere else, the Appeals Court upheld the defendant’s privilege to make such statements to the employer.

Notably, the Appeals Court stated that the content of the statements was essentially irrelevant to determine whether the statements were privileged in this context. The Appeals Court further found that there could be no question of fact as to whether the defendant made these statements maliciously. The fact that these statements were made in response to an employer’s inquiry regarding the plaintiff’s employment negated any finding of malice where it was the plaintiff’s burden to demonstrate that the defendant published the statements solely out of ill will or spite. 

Catherine Scott, Esq. is an associate at Morgan Brown & Joy practicing labor and 
employment law. She is currently the chair of the Young Lawyers Division of the Federal Bar Association. Learn more about Scott at

 1The Appeals Court even found that the defendant’s statement that she believed the plaintiff’s behavior to indicate a “severe bipolar disorder or some other form of mental handicap” was placed sufficiently within speculative context to make it a statement of opinion.