McDermott v. Hughley

¹⁵ COLE, Judge. The basic question presented in this case is whether the reports of a mental health care professional, requested by an employer and bearing on the fitness of an employee for employment, enjoy the defense of an absolute or qualified privilege in a defamation suit. If an absolute or qualified privilege pertains, then the trial court was correct in granting summary judgment. If no such defense is available, then the trial judge erred and a trial must be conducted.

The characters giving rise to this issue we introduce in the following recitation of facts. David Eugene Hughley applied to the Maryland-National Capital Park and Planning Commission (MNCPPC) for employment as a park police officer in October of 1981. Hughley was accepted as a candidate on August 9, 1982, but was advised that before becoming an official Park Police Officer, he would have to complete candidate training school and a twelve-month probationary period. He entered the Police Academy in Prince George’s County after working as a police dispatcher through November of 1982.

Having completed his training at the Academy in April of 1983, Hughley began field patrol training. He then learned that he might be transferred to a separate unit where he would be required to complete horse-mounted training. Having “no love of horses,” Hughley wrote to Captain George Klotz, the commanding officer of that unit, explaining his reservations. In a subsequent meeting with Captain Klotz, he further related vivid childhood memories of falling off a pony, of an uncle’s being kicked in the face by a horse, and of fellow officers sustaining knee injuries from having horses fall on them.

Nonetheless, Captain Klotz did not give Hughley permission to be excused and convinced him to “try” the mounted unit. Participation in that unit, however, was optional. The Mounted Unit Recruit Training Guide Booklet provided: If at any time during your training you wish to stop and return to your previous position, please do so, as ¹⁶ there will be no hard feelings. We only want officers that are genuinely interested in riding.

On August 15,1983, Hughley began horse-mounted training. He claimed that in the presence of horses, he became “queasy,” experienced “mild stomach problems,” and suffered incidents of vomiting and diarrhea. Hughley was convinced that it was his fear of horses which caused his physical reactions. After one week of training, he informed Captain Klotz that he was “uncomfortable” with his assignment.

Hughley, continuing to advise other supervisors of his condition, began also to experience leg, back, and hip pain from riding horses. His condition prompted him to seek medical help at his group health association (GHA) from Dr. Gary Jones. Still unable to convince Captain Klotz to excuse him from the horse-mounted training unit, Hughley consulted Dr. Ann L.B. Williams, also a GHA physician. Dr. Williams consulted a psychiatrist concerning Hughley and on September 7, 1983, wrote a letter to MNCPPC recommending that Hughley be excused from horse-mounted training because he experienced “severe anxiety reaction when around horses.” On September 12, 1983, Lt.

Robert Fox of the mounted unit summoned Hughley to his office. After discussing Hughley’s problem, Lt. Fox ordered Hughley to see Michael T. McDermott, Ph.D., a psychologist. Two days later, Fox telephoned Hughley and advised him to report to a pre-arranged appointment with McDermott that evening.

McDermott was under contract with MNCPPC to act as consultant and to provide counselling and referral services for employees needing help resolving work-affecting emotional problems. The two met on September 14, 1983, for approximately thirty minutes. Hughley proceeded to describe to McDermott the entire scenario of his horse-related phobia and his physical reactions when around horses. He told McDermott that Captain Klotz continued to insist on his participation in the mounted unit and that fellow officers referred to the Cap ¹⁷ tain’s methods as “Gestapo tactics.” At the conclusion of that interview, McDermott told Hughley that he believed that Hughley’s phobia of horses was not feigned and that he would recommend his transfer from the mounted training unit.

However, Lt. Colonel Donald R. Leslie, Sr. of the MNCPPC had told McDermott that if Hughley did not ride, Hughley would be fired. McDermott thereupon urged Hughley to undergo hypnosis to treat the phobia, but Hughley refused. McDermott persisted in recommending hypnosis and Hughley replied, “you are the psychiatrist, you can recommend anything you want to.” McDermott responded, “I will do that, then---They told me you had an authority problem but I don’t think you have one, I don’t think you are abnormal.” McDermott reminded Hughley that the results of the meeting would not remain confidential but must be reported to MNCPPC.

McDermott did, however, agree to provide Hughley a copy of his diagnosis. On September 29, 1983, Hughley was ordered to appear at a meeting before Major Richard Belt of MNCPPC, at which Larry Brownlee of the Fraternal Order of Police 1 and McDermott also were present. McDermott began by confirming his belief that Hughley’s phobia was real. He next stated that he and Hughley had agreed that Hughley would submit to hypnosis to treat his problem.

Hughley then interrupted claiming that he had not in fact agreed to hypnosis. An argument ensued between Hughley and McDermott, and the meeting quickly disintegrated. McDermott then told Hughley that it was necessary for him to sign a release for McDermott’s lawyers. That release, entitled “Consent for Release of Confidential Information”, as completed and signed by Hughley provided: I do hereby authorize Michael T. McDermott, Ph.D to disclose to Major Belt the following information: Diagnosis and Recommendation for the purpose of suitability for mounted training. ¹⁸ On October 4,1983, McDermott wrote the following letter to Major Belt: At the request of Lt.

Pox I conducted an evaluation of POC David Hughley on September 22, 1983. As an outcome of this evaluation, a meeting was scheduled with you and Mr. Hughley on September 29, 1983. The purpose of these meetings was to determine if POC Hughley suffers a phobic reaction to horses which prevents him from receiving training in the Mounted Unit. It is my opinion based on the session with Officer Hughley and conversation with other officers that no such phobic reaction exists and the symptoms of anxiety (stomach cramps) are presentations of false and grossly exaggerated symptoms.

The symptoms appear to be produced to avoid working in the Mounted Unit and specifically to avoid working under the command of Captain Klotz. In a word this is termed “malingering.” Most notable in the process of arriving at this diagnosis was POC Hughley’s lack of cooperation with the evaluation and prescribed treatment regimen. I will supply you with a full detailed explanation of these findings in the near future. If I can be of further assistance in this matter, please feel free to call me.

Hughley alleges that this letter was written in retaliation for the embarrassment experienced by McDermott at the September 29, 1983, meeting. McDermott again met with Major Belt on October 4 to discuss this report. The meeting also was attended by Roy Hedgepeth, Employee Relations and Development Manager; Lt. Col.

Donald R. Leslie, Sr., Division Commander, Prince George’s County; Mr. Wool, legal counsel; Captain Klotz; and Major Belt. Hughley was not invited to participate. On October 22, 1983, McDermott sent the supplemental letter, as he had promised, to Major Belt. McDermott wrote: This report will elaborate on my letter of October 4, 1983 regarding POC Hughley in which I reported my findings ¹⁹ that he was “malingering” in regard to work on the Mounted Unit.

I met with POC Hughley at my private office on September 22, 1983 at the request of Lt. Fox. In his communication with me Lt. Fox indicated that POC Hughley was being sent to me because he had developed a sudden and severe phobic response to horses.

Lt. Fox also indicated that POC Hughley had been riding horses for over two weeks when the symptoms occurred and there was some concern that the onset of symptoms was a scheme on POC Hughley’s part to get out of the Mounted detail. In my meeting with POC Hughley he came across as quite anxious, deferential, and eager to please. He detailed the severe stomach cramps he developed around horses and communicated the diagnoses of his doctor at GHA.

He could not explain why initially he had been able to ride horses without experiencing such symptoms. Throughout the interview he repeatedly remarked how difficult it was to work for Capt. Klotz because of the Captain’s disciplined approach to training and running the unit. Often these comments were quite bitter, referring to the Captain as the equivalent of a “Nazi.” He also stated that riding was “hard work” (physically taxing) and that it left him quite tired.

Upon further exploration of these issues with POC Hughley it surfaced that his stomach cramps first emerged when he was ordered to clean the stables. Repeatedly he told me of the instances where he had to go home sick and in each case prior to the onset of cramps there was a direct order from a superior officer. I told POC Hughley that I thought his problem was more related to authority figures than horses, which he denied. So I invited him to participate in one of two psychotherapy programs which have proven extremely effective in the treatment of phobias (either hypnotherapy or systematic desensitization).

POC Hughley agreed to pursue the hypnotherapy program and I told him I would talk to his superiors about this plan to resolve the horse phobia problem. ²⁰ On September 27, 1983, as you recall Major, I met with you and outlined the treatment plan for POC Hughley and proposed how his pursuit of treatment could be used to settle the matter. If he went for treatment and it was not helpful he would not continue with Mounted Training, however, his participation in treatment would let us know that he was serious in his attempt to resolve this matter. After the interview I spoke with three officers from the Mounted Unit. In private conversation each of them indicated that they thought POC Hughley was “faking it” because he did not like the Unit nor the Unit commander and had voiced this sentiment quite frequently.

On September 29, 1983 POC Hughley, FOP Representative Brownlee, and I met with you to resolve this matter and discuss treatment. In this meeting Hughley refused treatment and denied that he had agreed to it in my earlier meeting with him. In fact his entire tone had changed from one of deference to open hostility, excitability, and tension. He argued vociferously with me about the treatment and lied outright about our reaching an agreement.

He was also quite argumentative about the condition of his employment although I was not trying to discuss that with him. When I told him he was undoing the agreement we had reached, he concurred and said that he would not honor that agreement. Based on his irascible mood, refusal to cooperate in any way to alleviate this situation at the Mounted Unit other than to be removed, the symptomatology occurring only when given an order, and his stated dislike of the Unit commander, I was forced to conclude that this was not a bona fide phobia but a manipulation to get out of a work assignment he did not like. Beyond the issues involved in this incident, one must speculate on the viability of such an officer to be relied upon in the future to follow orders and deal with your organization in a forthright and honest manner.

I would also question his ability to deal with authority in an orderly way and become a contributing member of the ²¹ force. To date his actions have been a severe drain on all involved from supervisory personnel to fellow officers. The manipulations he demonstrated indicate there may be more pathological character issues involved here than just contempt for superiors. Other than with criminal elements, I have not seen an individual lie so boldly or so vehemently when to cooperate or to be truthful would only be in his best interest.

In sum, one must wonder about his ability to be a police officer and carry out that task responsibly and honestly. In summary I find that POC Hughley does not suffer from a phobia to horses which prevents his working in the Mounted Unit. I did find that he was trying to avoid working in the unit and specifically avoiding the command of Capt. Klotz.

His exaggerated symptoms are false presentations aimed at reassignment. If I can be more detailed or of further assistance in this matter, please call me. On October 18, 1983, Hughley received notification of MNCPPC’s intention to fire him, and he officially was terminated on December 2, 1983, Hughley brought suit in the Circuit Court for Prince George’s County on October 4, 1984, alleging one count of libel and slander. The circuit court (Woods, J.) granted McDermott’s motion for summary judgment.

The Court of Special Appeals vacated that judgment, Hughley v. McDermott, 72 Md.App. 391, 530 A.2d 13 (1987), and remanded the case for further proceedings. We granted McDermott’s petition for a Writ of Certiorari. McDermott urges us to agree that the reports of October 4 and 22, 1983, containing the purported defamatory statements enjoy an absolute privilege and therefore are non-actionable or that they are conditionally privileged as a result of the alleged actual and implied consent of David Hughley. McDermott contends that as of September 14, 1983, the date of their first appointment, Hughley knew that McDermott would report his diagnosis and recommendations re ²² garding the alleged phobia to Hughley’s superiors.

McDermott also posits that by participating in that interview, Hughley thereby gave his implied consent, and that by requesting a copy of the reports and by signing the release on September 29, 1983, Hughley gave his express consent to the publication of the contents. Arguing that a vital public interest exists in having mental health care professionals determine, in administrative proceedings, the fitness for duty of police organization employees, McDermott maintains that such freedom to report should be unfettered by any inquiry into the professional’s purpose or motive; thus, such reports should be absolutely privileged. McDermott argues that the doctrine of absolute privilege should be extended from the immunity afforded statements made during judicial proceedings to administrative proceedings as well. Furthermore, McDermott asserts that in the absence of evidence of actual malice, a qualified privilege insulates the allegedly defamatory statements.

Finally, McDermott describes the contested statements as pure opinions and therefore not actionable. Thus, McDermott contends, summary judgment was proper. We disagree and explain. Our cases make indelibly clear that at a hearing on a motion for summary judgment, the trial judge’s role is not to decide the merits of the case but rather to determine whether any material facts are in dispute.

Summary judgment should be granted only when pre-trial documents demonstrate that no such dispute exists and that the moving party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, an appellate court primarily should consider whether or not a factual issue exists, and in so doing should resolve all inferences against the party making the motion. Beard v. American Agency, 314 Md. 235, 246 , 550 A.2d 677 (1988); Keesling v. State, 288 Md. 579, 590 , 420 A.2d 261 (1980); Berkey v. Delia, 287 Md. 302, 304-05 , 413 A.2d 170 (1980); Peck v. Baltimore County, 286 Md. 368 , 410 A.2d 7 (1979); Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216 , 401 A.2d ²³ 1013 (1979); Dietz v. Moore, 277 Md. 1, 4-5 , 351 A.2d 428 (1976).

It is also firmly established that written or oral communications, otherwise libelous per se, for reasons of public policy may be either absolutely or qualifiedly privileged. Miner v. Novotny, 304 Md. 164, 167-68 , 498 A.2d 269 (1985); Orrison v. Vance, 262 Md. 285, 292 , 277 A.2d 573 (1971). In DiBlasio v. Kolodner, 233 Md. 512, 522 , 197 A.2d 245 (1964), we explained the difference: [a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused. [Citations omitted.] There exists a sound basis for granting certain publications an absolute privilege against all defamation claims. The common law makes a practical judgment to allow for mistakes in the accuracy of reported statements believed to be true by the speaker, particularly where the failure to make such allowances “would unduly hinder important speech, and would discourage many from publishing the disparaging truth about others for fear of being unable to prove it.” Prosser and Keeton, The Law of Torts, § 114 (1984).

Otherwise actionable conduct thus is protected where the accused acts in furtherance of a recognized socially important interest. That interest outweighs the right of the person defamed to recover for injury to his reputation. Prosser, Torts, § 114. This Court has recognized the existence of an absolute privilege most notably with respect to judges, attorneys, parties, and witnesses who publish defamatory material during the course of a “judicial proceeding”.

Gersh v. Ambrose, 291 Md. 188, 192 , 434 A.2d 547 (1981); Adams v. Peck, 288 Md. 1 , 415 A.2d 292 (1980); Korb v. Kowaleviocz, 285 Md. 699, 701-04 , 402 A.2d 897 (1979). The underlying rationale for