MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Shaun Kelley, a Holyoke police officer, appeals from a Superior Court judges dismissal of his complaint against the city of Holyoke (city) alleging violation of the Massachusetts Tort Claims Act (MTCA).
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Kelley argues on appeal that it was error for the judge to rule that the city was exempt from liability pursuant to G. L. c. 258, § 10 (c). We affirm.
Background. The following facts are drawn from the complaint and are undisputed. In 2016, the citys police department (department) began random drug testing of police officers. That testing was authorized by the collective bargaining agreement, which promised, “All individuals who receive copies of the testing results are required to keep the results confidential.”
In April 2016, Kelley was taking prescription medication to reduce his cholesterol. After Kelley was drug tested on April 19, 2016, his urine sample showed an unusually low amount of naturally occurring endogenous steroids, which are synthesized from cholesterol. However, the testing laboratory misinterpreted the results as showing no endogenous steroids at all, and misclassified the sample as “non-human/synthetic.” That misinformation was relayed to the departments acting chief, who erroneously assumed that Kelley, whose responsibilities included maintaining narcotics seized as evidence, had submitted a synthetic sample in order to subvert testing and conceal illicit drug activity. As a result, on May 2, 2016, the chief placed Kelley on paid administrative leave.
As quoted in the complaint, a news article was posted on the Internet on May 24, 2016, stating:
“A city police officer is on paid administrative leave in relation to random drug testing being conducted with all officers -- but officials are examining whether a problem occurred with the testing itself, a police official said Tuesday.
Lt. Manuel T. Reyes, commander of the departments [p]rofessional [s]tandards [d]ivision, said [Kelley] is on paid administrative leave.”
The complaint alleged that Reyes had disclosed to the media that Kelleys administrative leave was as a result of a sample he submitted during random drug testing.
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Subsequent testing on other samples taken from Kelley showed that endogenous steroids were in fact present. Those samples also tested negative for narcotics. In July 2016, the department sent to Kelley a letter from the testing laboratory which clarified that Kelleys April 19 sample was not classified as “non-human/synthetic”; that sample did contain fewer than usual endogenous steroids, but that reduction could have been caused by “some underlying medical condition.” The department issued a report concluding that the allegation of misconduct against Kelley was unfounded, and he returned to work the next day.
On August 5, 2016, the online news article was updated to state that “an error occurred regarding an officer whose initial test resulted in him being placed on paid administrative leave,” and that the results of an internal affairs investigation “showed [that] the lab had made an erroneous report and the officer involved tested clean. That officer is in good standing and has been returned to his regular assignment.”
Kelley sued the city under the MTCA, alleging that “[t]he disclosure of [his] name to the media was negligent and defamatory,” and caused damages including the lost opportunity for overtime, emotional distress, and damage to his reputation as a result of being subject to “derision” from online commenters. The city moved to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).
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The judge allowed the motion, reasoning that although the complaint alleged that the city and Reyes were “negligent” in disclosing Kelleys confidential information to the press, in fact the disclosure sounded as an invasion of privacy, an intentional tort for which the city was exempted from liability by G. L. c. 258, § 10 (c). Kelley appeals.
Discussion. We review de novo the decision to dismiss Kelleys complaint, accepting as true all factual allegations in it and drawing all reasonable inferences in his favor. See Sudbury v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 778 (2020). In assuming the facts alleged as true, “[w]e do not regard as ‘true’ legal conclusions cast in the form of factual allegations.’ ” Id. at 778-779, quoting Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6 (2009). To survive a motion to dismiss, the facts alleged must “raise a right to relief above the speculative level” (citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Our review is based on the same record as was before the motion judge. See id. at 635–636 (2008).
Under the MTCA, public employers are liable for the “negligent or wrongful act or omission of any public employee.” G. L. c. 258, § 2. Section 10 (c) of the MTCA exempts public employers from liability for “any claim arising out of an intentional tort, including ․ invasion of privacy.”
Kelly maintains that his complaint alleged a general claim of negligence, and not any intentional tort. He relies on Ortiz v. County of Hampden, 16 Mass. App. Ct. 138, 140 (1983), in which we held that a plaintiffs claim survived a motion to dismiss even though “[t]he complaint gives no indication of what specific acts or omissions by the county employees are alleged to have constituted the negligence.” Under Iannacchino, however, the facts alleged in a complaint now must rise above “the speculative level” (citation omitted). 451 Mass. at 636. Kelley did not meet the Iannacchino standard merely by insisting that his claim was for negligence, particularly where it alleged that the negligent disclosure was “defamatory.” Thus, Kelleys complaint was “an attempt to recast an intentional tort as one which sounds in negligence.” Alves v. Massachusetts State Police, 90 Mass. App. Ct. 822, 827 n.12 (2017).
Kelleys complaint alleged against the city a single count of negligence, which incorporated by reference the allegation that “[t]he disclosure of [Kelley]’s name to the media was negligent and defamatory.”
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From that language, the claim would sound as one for negligent defamation. Even so, the judge ruled that the actions of the citys employee in disclosing Kelleys confidential information to the media “sounds as an invasion of privacy.” As discussed below, whether Kelleys claim is construed as one for negligent defamation or for invasion of privacy, dismissal was proper, because both are torts for which the city is exempt from liability under G. L. c. 258, § 10 (c).
Negligent defamation. Based on the plain language of the complaints allegation that “[t]he disclosure of [Kelley]’s name was negligent and defamatory,” it would seem to allege negligent defamation. “Defamation is the publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt” (citation omitted). Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 628 (2012). Ordinarily, the defamatory statement must be false.
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Id. at 628 n.6. Cf. Foley v. Lowell Sun Publ. Co., 404 Mass. 9, 11-12 (1989) (article stating that plaintiff was “charged” with assaulting officer not defamatory).
In the complaint, the act of negligence alleged against the city was that Reyes disclosed to the media that Kelley had been placed on paid administrative leave “as a result of the sample he submitted during random drug testing.” The complaint quoted the online article as reporting that a police official had disclosed that Kelley was on paid administrative leave “in relation to random drug testing being conducted with all officers -- but officials are examining whether a problem occurred with the testing itself.” The complaint did not allege that those statements to the media were false.
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In Barrows, 82 Mass. App. Ct. at 624, this court held that defamation falls within those G. L. c. 258, § 10 (c) torts for which a public employer is exempt from liability. Barrows, an employee of the Wareham water department, was fired based on allegations that he had improperly deposited dirt in an area subject to regulation under the Wetlands Protection Act. Id. at 624-625. Barrows appealed the termination, claiming he “was being targeted by” the department head. Id. at 625. A reviewing committee determined that Barrows had not committed any violation and reinstated him with full back pay, but then a different town commission determined that the depositing of the dirt did violate the Wetlands Protection Act. Id. After Barrows sued for defamation, summary judgment was entered in favor of the town on the grounds that G. L. c. 258, § 10 (c), exempted the town from liability. Id. at 630. In affirming the judgment, this court noted that defamation is “unique” among § 10 (c) torts in that it does not require intentional misconduct; a defamatory statement “is equally tortious whether it is made intentionally, recklessly, or negligently.” Id. at 628-629. Here, as in Barrows, to the extent that the complaint could be construed as alleging negligent defamation, that claim was barred by § 10 (c).
Invasion of privacy. The complaint did not allege an invasion of privacy or cite to the relevant statute, G. L. c. 214, § 1B. Even so, the judge construed Kelleys claim as alleging an invasion of privacy, and ruled that it is an intentional tort from which the city is exempt from liability under the explicit language of G. L. c. 258, § 10 (c).
In Amato v. District Attorney for Cape & Islands Dist., 80 Mass. App. Ct. 230, 234-235 (2011), the plaintiff voluntarily submitted a deoxyribonucleic acid (DNA) sample to police investigating a homicide, based on the promise that law enforcement officials would not retain or use his DNA profile if it did not match the DNA found at the crime scene. After the homicide investigation ended, Amato sued various law enforcement agencies for claims including invasion of privacy. Id. at 231. A Superior Court judge dismissed the complaint on the grounds that G. L. c. 258, § 10 (c), exempted the agencies from liability for invasion of privacy, an intentional tort. On appeal, we held that Amato was entitled to equitable relief, but noted that he “now concedes, as he must,” that the judge had “properly” ruled that § 10 (c) precluded Amato from seeking damages for his invasion of privacy claim.
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Id. at 231 n.3. Here, as in Amato, to the extent that the complaint could be construed as alleging invasion of privacy, that claim was barred by § 10 (c).
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Judgment dismissing complaint as against city of Holyoke affirmed.
FOOTNOTES
3
. Kelleys claims against the other defendants, including a testing laboratory and its employees, were dismissed and are not before us.
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. The complaints quotations from the article leave some ambiguity whether Kelley was the officer on paid administrative leave, and whether Reyes was the police official who made the disclosure. Taking the facts in the light most favorable to Kelley, we infer that Reyes disclosed that Kelleys placement on administrative leave was connected to drug testing. Cf. Anderson v. Gloucester, 75 Mass. App. Ct. 429, 430-431 & n.3 (2009) (assuming for purposes of summary judgment that police officer misidentified deceased and surviving victims of fire).
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. The city attached to its motion the complete online news article, and argued that the judge should consider it under the doctrine of completeness. See Mass. G. Evid. § 106(a) (2021). The judge did not refer to the contents of the article, beyond what was quoted in the complaint. Because the article is not necessary to our ruling, we do not consider it.
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. That allegation also stated that the disclosure of Kelleys name “violated the [d]epartments drug testing policy, and breached [Kelley]’s rights under the collective bargaining agreement.” However, those documents were not appended to the complaint, and so the judge commented that he would not consider those claims.
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. A plaintiff may recover for a truthful defamatory statement if it was published in writing and made with actual malice. See G. L. c. 231, § 92; Barrows, 82 Mass. App. Ct. at 628 n.6. Here, the complaint did not allege actual malice, and Kelleys counsel expressly disavowed that disclosure of his information was done “with the intent of causing harm.” Of course, if a truthful defamatory statement had been made with malice, it would still have been an intentional tort under G. L. c. 258, § 10 (c). See Barrows, 82 Mass. App. Ct. at 628 n.8.
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. Had the complaint alleged that a city employee negligently made a false statement, that claim would not be exempt, as negligent misrepresentation “is a separate and distinct nonintentional tort that is not enumerated in § 10 (c).” Barrows, 82 Mass. App. Ct. at 628 n.8.
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. Unlike the plaintiff in Amato, in his complaint Kelley sought only damages, and not equitable relief.
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. In the Superior Court, the city argued that it did not have a duty to maintain the confidentiality of Kelleys information; the judge rejected that argument. The city now argues at length that we should hold that it did not have such a duty to Kelley. Deciding the case as we do, we decline to reach that issue.