STATE OF RHODE ISLAND

WASHINGTON, SC. SUPERIOR COURT

[FILED: JANUARY 15, 2021]

ELIZABETH BURDICK

V.

TOWN OF WESTERLY, CHRISTOPHER

DUHAMEL, DIANA SERRA, PATRICIA

DOUGLAS, MICHELLE BUCK, STEVEN

HARTFORD, DANIEL KINDER, AND

DEBORAH BRIDGHAM, IN HER

CAPACITY AS TREASURER FOR THE

TOWN OF WESTERLY

:

:

:

:

:

:

:

:

:

:

:

C.A. No. WC-2016-0043

DECISION

TAFT-CARTER, J. Before this Court are Defendants’ Motions for Summary Judgment; one

motion was filed by the Defendant Town of Westerly (the Town), through Christopher Duhamel

(Duhamel), Diana Serra (Serra), Patricia Douglas (Douglas), and Deborah Bridgham (Bridgham),

in her capacity as Treasurer for the Town (collectively, the Town Defendants), and the remaining

three motions were filed by Defendants Michelle Buck (Buck), Daniel Kinder (Kinder), and Steven

Hartford (Hartford) (together with the Town Defendants, referred to herein as Defendants).

Plaintiff Elizabeth Burdick (Plaintiff or Burdick) objects to Defendants’ motions. Jurisdiction is

pursuant to G.L. 1956 §§ 8-2-13, 9-1-28.1(b), 28-50-4, and Super. R. Civ. P. 56.

I

Facts and Travel

This case arises from a dispute between a former zoning official and the Town, involving

two competing and contradictory accounts of certain events that occurred from 2011 through 2015.

2

Plaintiff was employed by the Town as Zoning Enforcement Officer (ZEO) for approximately four

and a half years, until her separation therefrom became effective on February 22, 2013. See Defs.’

Common App. Dep. Ex. G 460-64; Ex. DD 243.1 Plaintiff’s contested version of these events

paints her as a whistleblower who experienced retaliation, defamation, and invasions of her privacy

at the hands of at least two civil conspiracies by the Town and its employees and agents.

Defendants argue that a stressful zoning matter and subsequent separation from employment were

made more complicated by Plaintiff’s paranoia, conflicts of interest, and accusations against

former colleagues. Plaintiff and Defendants both agree that the instant controversy arose during a

period dominated by Burdick and the Town’s interaction with Westerly Granite Co., Inc. (Westerly

Granite).

The Copar Matter

In late 2011, Westerly Granite, as owner of a parcel of land in Westerly, submitted a site

plan for a zoning permit seeking permission to engage in quarry operations within certain portions

of its parcel. (Ex. DD 256-57.) This precipitated a controversy, herein referred to as the “Copar

matter,” regarding the terms of a pre-existing special use zoning permit that allowed Westerly

Granite and quarry operator Copar Quarries of Westerly, LLC (Copar) to operate the marble quarry

over the vehement objections of surrounding residents. Id. at 258-59.

The Copar matter was a high-profile event for the Town. In late 2011, Burdick began to

receive complaints and threats from the disgruntled neighbors of Westerly Granite’s parcel about

“noise and dust” from processing operations. See id. at 259-60. Burdick recalls that one particular

neighbor lodged “probably a hundred complaints.” Id. at 263-69. According to Defendant

1 Unless otherwise indicated, all Exhibits referenced herein refer to those contained in the Common

Appendix to the Defendants’ Memoranda of Law Supporting Motions for Summary Judgment

(Defs.’ Common App.).

3

Hartford, it was as a result of this pressure that he removed Burdick from handling the Copar

matter on December 27, 2012. (Dep. Ex. A 405.) Yet, during this same period in December 2012

and January 2013, Burdick sent three letters to then-Town Solicitor Buck, through counsel,

accusing various individuals in the town government of having engaged in unethical or illegal

conduct, as well as claiming that her work environment was hostile and discriminatory. See Ex. E

6-7; Ex. F 8-9; Ex. G 10-11. The January 16, 2013 letter notified the Town of Burdick’s intention

to bring claims against it, potentially under the Rhode Island Whistleblowers’ Protection Act,

§§ 28-50-1 et seq. (RIWPA), due to her removal from the Copar matter following the Town’s

receipt of her December 2012 letter and its allegations of wrongdoing. (Ex. F 9; Ex. DD 290-91.)

The January 16, 2013 letter also included Plaintiff’s first accusations that she was “subjected to

the Town Manager [Hartford] using her office to further his illicit affair with a staff member in

violation of innumerable municipal regulations.” (Ex. F 8.)

Burdick also claims that, before she was removed from handling the Copar matter, Hartford

and Buck restrained her from taking any enforcement action against Copar or Westerly Granite.

(Am. Compl. ¶ 11(b); Ex. DD 279-81.) Burdick believed that there was a preexisting quarry use

available on the land, and she alleges that Hartford and Buck coerced her into changing her official

opinion. (Am. Compl. ¶ 11(b); Ex. DD 369, 374-79; Ex. EE 680-81.) However, Burdick indicated

in a November 27, 2012 email to Buck and then-Zoning Solicitor Jack Payne (Payne) that she was

“ok with” changing her opinion because Hartford and Buck’s different legal interpretation had

“changed [her] mind.” Dep. Ex. F 459; see Ex. DD 369, 374-76.

In January 2013, the Town learned that Burdick was approached by one of the principals

of Copar, Sam Cocopard (Cocopard), with an invitation to apply for a position at a Copar quarry

project in Lisbon, Connecticut, and that Burdick responded by signaling her interest. Ex. DD

4

302-04; see Dep. Ex. C 448-49. Specifically, the Town learned that Burdick sent an email to Jamie

Rabbitt (Rabbitt), a planner for the Town of Lisbon, on January 8, 2013. See Dep. Ex. H 689. In

this email, Burdick sought to meet with Rabbitt “to discuss the project in detail and from the

Town’s [Lisbon’s] perspective.” Id. On January 16, 2013, then-Town Manager Hartford met with

Burdick to discuss her email to Rabbitt and Copar’s invitation for Burdick to apply for a position

with the company. (Ex. DD 303-05.) Burdick acknowledged that she spoke to Cocopard but said

she had not agreed to work for them. See id. at 309. However, Burdick received a check dated

January 11, 2013 from Cocopard which represented half of a retainer, though she alleged that she

had not cashed it at that time. Id. at 313-14.

In a January 18, 2013 memorandum, Hartford memorialized the discussion that took place

during the January 16, 2013 meeting. (Dep. Ex. C 448-49.) In his memorandum, Hartford had

“decided that it would be a clear conflict” of interest for Burdick to work for Copar, an adverse

party in litigation with the Town. Id. Burdick alleges that Hartford’s memorandum was false and

defamatory. (Am. Compl. ¶ 15; Ex. DD 314-17.) Her subsequent January 18, 2013 letter, through

counsel, accused the Town of engaging in additional RIWPA violations when Hartford put his

memorandum reprimanding Burdick for considering a job with Copar in her personnel file. (Ex.

G 10.)

As a result of these competing narratives of wrongdoing, the Town, through Defendant

Kinder, hired Richard Kerbel of R. Kerbel Consulting LLC to conduct an investigation regarding

Burdick’s allegations. See Am. Compl. ¶¶ 19-21; Ex. DD 323-25; see also Dep. Ex. D 450-57.

Burdick refused to participate in this investigation. (Ex. DD 450-55.) On February 10, 2013, after

reviewing the allegations made by Burdick and her attorney, Kerbel reported that he “did not find

anything of substance” and concluded that Burdick’s allegations were either false or based on

5

misunderstandings or exaggerations. See id. at 324-25; see also Dep. Ex. D 455. Burdick later

alleged that Defendants conspired to create a sham investigative report, as Kerbel was employed

as a paralegal by Defendant Kinder at the time of the investigation. (Am. Compl. ¶ 21; Pl.’s Mem.

Supp. Obj. Defs.’ Mot. Summ. J. (Pl.’s Mem.) 11-14.)

Burdick left her position with the Town on February 22, 2013. See Dep. Ex. G 460-64. On

that date, Burdick signed a separation agreement (the Separation Agreement) that contained a

waiver and release of claims.2 See id. at 464. Burdick agreed, in consideration of the payments

made to her by the Town, to release the Town and its representatives “from any and all demands,

claims, causes of action and lawsuits, known and unknown, that [she] may have or have had against

any Released Parties from the beginning of time to the date of [her] signing.” Id. at 461.3

2013 Publicity and Statements

Shortly after Burdick left her position with the Town, local newspaper The Westerly Sun

published several articles discussing Burdick’s employment and the allegations addressed in the

2 The parties point to varying dates for when Plaintiff signed the Separation Agreement. The Town

Defendants, Kinder, and Hartford state that Plaintiff signed the Separation Agreement on February

28, 2013. (Town Defs.’ Mem. 5; Def. Kinder’s Mem. 1; Def. Hartford’s Mem. 2.) Defendant Buck

asserts that Plaintiff signed the agreement on February 20, 2013, and that her separation from the

Town became effective on February 22, 2013. (Def. Buck’s Am. Mem. 7.) Plaintiff says that the

agreement was entered into on February 22, 2013. (Pl.’s Mem. 2.) Although the handwritten date

at the end of the agreement appears to read February 22, 2013, but is arguably unclear, the

typewritten date on the first page clearly reads February 22, 2013. (Dep. Ex. G 460-64.)

Additionally, the Separation Agreement defines Plaintiff’s last day of employment with the Town

as February 22, 2013. Id.at 460. As such, the Court finds the Separation Agreement to be effective

as of February 22, 2013. 3 “[I]ncluding those arising from your employment or its termination, whether under any state or

federal statute, or under the common law. This includes the right to file suit or otherwise seek or

receive personal restitution for, by way of example and not limitation: (a) breach of contract, . . .

(c) unlawful or tortious acts, (d) retaliation, or (e) violation of employment laws, discrimination

laws or civil rights laws, such as, but not limited to: . . . (xviii) the Rhode Island Whistleblower

Protection Act, R.I. GEN LAWS § 28-50-1 et seq.; and any and all other applicable federal, state

or local laws or ordinances whatsoever.” (Dep. Ex. G 461.)

6

Kerbel report. See Exs. M-Q 93-102. The paper received some of its information from an

unidentified source.4 See, e.g., Ex. M 93-95; see also Ex. EE 523. As a result of the Westerly Sun’s

initial receipt and subsequent publication of this information, members of the Town Council and

Town staff were asked to comment on Burdick’s allegations. See Exs. M-Q 93-102. Consequently,

the statements made by Town functionaries, quoted in the articles published in March and April

of 2013, form the basis for a number of Burdick’s claims of retaliation, defamation, and false light

invasion of privacy, as well as negligence and conspiracy. See id.; see also Am. Compl. ¶¶ 30-39,

69-76, 95, 98.

The 2013 statements at issue include the following:

• On February 11, 2013, Westerly Sun reporter Dale P. Faulkner (Faulkner) requested that

the Defendant Town, under the Access to Public Records Act (APRA), release records

related to a whistleblower claim by Burdick. (Dep. Ex. LL 826; Am. Compl. ¶ 22.) Burdick

alleges that Buck, Kinder, and Hartford’s response on February 15, 2013 that “we do not

believe that any documents exist that are responsive to your request,” was false and

misleading. (Dep. Ex. MM 827; Am. Compl. ¶ 23.) Burdick states that her emails to the

Town in December and January would constitute claims and that Buck, Kinder, and

Hartford conspired to conceal that information. (Pl.’s Mem. 22-23.)

• On or about March 23, 2013, Hartford provided limited information to the Westerly Sun

regarding the Separation Agreement, while acknowledging that “he was prohibited from

discussing the matter because it is considered to be a personnel issue.” (Ex. M 93.)

4 The release of this information is one basis for Burdick’s claim for civil conspiracy. See Am.

Compl. ¶ 29; but see Ex. DD 394-97 (Burdick Deposition) (admitting no factual knowledge

underlying her assertion of the Town’s culpability as well as other possible sources for the release,

including her ex-husband).

7

• On or about March 23, 2013, Robert Ritacco, then-Chairman of the Zoning Board of

Review, responded to an inquiry by the Westerly Sun regarding Burdick’s accusations

against town employees by stating “I know that the town has taken these allegations

seriously and has investigated each of them and has found that there is no basis or merit to

any of them.” (Ex. M 94.)

• A March 24, 2013 Westerly Sun article, “Email communication links Burdick with Copar

operators,” made reference to the conflict matters discussed in Hartford’s memorandum,

regarding Burdick’s disputed association with Copar while working for the Town. (Ex. N

96.) Burdick alleges that the disclosure of this information was made by Defendants, in

violation of her right to privacy. (Am. Compl. ¶¶ 34-37, 72-73.)

• On or about March 29, 2013, the Town Council, including Defendants Douglas, Serra, and

Duhamel, was cited by the Westerly Sun as stating that “Burdick’s claims had been

investigated and found to be untrue.” (Ex. P 100; Am. Compl. ¶ 38.)

2015 Publicity and Statements

Public Town Council meetings also provided a forum for potentially objectionable

statements during 2015. In February of 2015, two years after Burdick left the Town’s employment,

a private individual named Robert Lombardo, Esq., began to make inquiries at Town Council

meetings about Burdick and her separation from the Town, proclaiming that it was his belief that

Burdick extorted money from the Town. (Ex. DD 389-90.) Lombardo also accused the Town of

paying Burdick off to conceal Hartford’s alleged affair in the Town office. (Ex. R 103; Am. Compl.

¶ 40.) Burdick points to several statements made during this period to support her claims of

retaliation, defamation, and false light, as well as negligence and conspiracy:

8

• On February 13, 2015, Hartford published a prepared statement subsequently published in

the Westerly Sun that claimed that Burdick’s allegations regarding his extra-marital affair

were “false.” (Ex. S 105; Am. Compl. ¶ 42-43.)

• On February 13, 2015, Serra was interviewed by and subsequently quoted in the Westerly

Sun as saying, in reference to Burdick and Hartford, that “[t]hey were both let go.” (Ex. S

106.) Burdick alleges that this statement implied that the Town involuntarily terminated

her employment. (Am. Compl. ¶¶ 44-45, 79-80.)

• Citing “the nature of the charges,” including “alleged criminal behavior,” Duhamel called

for the Rhode Island State Police to investigate the Town’s handling of the Copar matter,

including the circumstances of Burdick’s departure on February 16, 2015, “[a]lthough he

[did] not believe a crime occurred.” (Ex. T 109.) Burdick alleges that Duhamel’s conduct

and statements defamed and placed her in a false light. (Am. Compl. ¶¶ 46-48, 81-82.)

• On March 5, 2015, Westerly Sun reporter Faulkner contacted Buck to ask for clarification

about her 2013 statement that the Town was not in possession of any claims asserted by

Burdick under the RIWPA. (Dep. Ex. NN 828-829.) Buck replied to Faulkner, copying

Kinder, stating that “[t]he response was based on consultation with Mr. Kinder; and is fully

supported by the law.” Id. at 828. Burdick alleges that this statement “publicly reiterated

that [she] had not sought protection under the [RIWPA]” and was consequently false and

defamatory. (Am. Compl. ¶¶ 49-50, 83-84.) Burdick further alleges that subsequent

statements to the same effect by Defendant Kinder were also false and defamatory. (Am.

Compl. ¶¶ 51-52, 85-86.)

• On March 10, 2015, Duhamel stated that he “did not recall being informed that Burdick

had made claims under the [Whistleblower’s Protection] act” and that “Burdick made her

9

claims after town officials accused her of working for Copar at the same time she was

employed by the town.” (Ex. V 115.)

• In the course of the State Police investigation, it became evident that several of Burdick’s

emails were missing. (Ex. W1 120.) Serra, commenting on the missing emails, was quoted

as saying “I don’t think anything was done wrong by Michelle Buck. This was either done

by someone prior to their leaving or it’s an inside job.” Id. at 121. Burdick alleges that this

statement by Serra referred to her, was defamatory, and placed her in a false light. (Am.

Compl. ¶¶ 59-60, 91-92.)

At a March 16, 2015 Town Council meeting, the Council waived its attorney-client

privilege with Defendant Kinder only “with [ ] respect to [the] employment of Elizabeth Burdick”

to allow him to address the public about the ongoing dispute. See Ex. I 38-41, 45-46; Ex. L 84-92.

Burdick cites multiple statements and disclosures made by Kinder during that meeting as an

invasion of her privacy and defamatory. (Am. Compl. ¶¶ 61-64, 93-94.) Plaintiff’s attorney,

Gregory Massad (Massad), also made multiple public appearances at Town Council meetings

during this period, advancing claims on behalf of Plaintiff in public fora that were then reported in

the Westerly Sun. See Ex. U 112-13 (“Burdick’s lawyer blasts town”); Ex. V 115-16 (“Burdick’s

lawyer presses claim with Town Council”); Ex. W 117-19; Ex. Y 126-27.

Plaintiff filed an eighteen count Amended Complaint on June 20, 2016. See Am. Compl.

Burdick alleges that the release of information and the statements by the Town Defendants were

part of a coordinated effort on the part of the Town Defendants to defame and denigrate Burdick,

which efforts constitute two separate civil conspiracies against her. Burdick also claims the Town

breached several duties owed to her, relating to the investigation and her information. Lastly,

Burdick is pressing her original RIWPA claim.

10

In Counts I-X of the Amended Complaint, Burdick alleges that the Town Defendants

retaliated against her (Count II), defamed her (Counts III, VI, VIII, X), invaded her privacy by

portraying her in a false light (Counts I, V, VII, IX), and were negligent (Count IV). See Am.

Compl. ¶¶ 66-99.5 In Count XVIII, she alleges that Duhamel, Serra, and Douglas conspired against

her to invade her privacy, defame her, portray her in a false light, and retaliate against her for being

a whistleblower. See Am. Compl. ¶¶ 95-109 (Count XVIII). As a consequence, Burdick claims

she has suffered multiple harms, reputational, emotional, and employment related. See, e.g., Am.

Compl. ¶¶ 95-97 (Count I); Am. Compl. ¶¶ 107-09 (Count XVIII).

In Counts XI-XVII, Burdick alleges that Buck, Hartford, and Kinder each individually

defamed her (Counts XII, XIV, XVI), invaded her privacy by portraying her in a false light (Counts

XI, XIII, XV), and further conspired with each other to invade her privacy, defame her, and

retaliate against her for being a whistleblower (Count XVII). See Am. Compl. ¶¶ 95-113. As a

consequence, Burdick claims she has suffered multiple harms, reputational, emotional, and

employment related. See, e.g., Am. Compl. ¶¶ 97-99 (Count XII). Burdick seeks damages for all

harms asserted, including punitive damages against individual Defendants, attorney’s fees,

interest, and costs. (Am. Compl. 40.)

Town Defendants (Counts I-X and XVIII) filed their Motion for Summary Judgment on

June 6, 2019. Defendants Buck (Counts XI, XII, and XVII) and Kinder (Counts XV-XVII) filed

their Motions for Summary Judgment that same day. Defendant Hartford (Counts XIII, XIV, and

XVII) filed his Motion for Summary Judgment on June 7, 2019. Plaintiff filed her objection to

these motions on March 13, 2020. The parties appeared remotely before the Court for argument

5 The paragraph numbering convention used in Plaintiff’s Amended Complaint means that there

are multiple versions of paragraphs 95-109 under different counts. See Am. Compl. 19-39.

11

on July 8, 2020, in accordance with orders from the Rhode Island Supreme Court. COVID-19

Pandemic Response – Continuity of Operations, No. 2020-12 (Executive Order Entered May 15,

2020.) The Court reserved its decision.

II

Standard of Review

“Summary judgment is appropriate when no genuine issue of material fact is evident from

‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits if any,’ and the motion justice finds that the moving party is entitled to prevail as a matter

of law.” Swain v. Estate of Tyre ex rel. Reilly, 57 A.3d 283, 288 (R.I. 2012) (quoting Beacon

Mutual Insurance Co. v. Spino Brothers, Inc., 11 A.3d 645, 648 (R.I. 2011) (internal quotation

omitted)). The moving party “bears the initial burden of establishing the absence of a genuine issue

of fact.” McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). The

Court “views the evidence in the light most favorable to the nonmoving party[,]” Mruk v.

Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013), and “does not pass

upon the weight or the credibility of the evidence[,]” Palmisciano v. Burrillville Racing

Association, 603 A.2d 317, 320 (R.I. 1992). Thereafter, “‘the nonmoving party bears the burden

of proving by competent evidence the existence of a disputed issue of material fact and cannot rest

upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.’”

Mruk, 82 A.3d at 532 (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)).

12

III

Analysis

As the four pending motions for summary judgment contain many of the same arguments,

the Court will address them together in the interest of judicial economy. The Court has noted

differing arguments among the parties to the extent they exist in the briefing.

A

Rhode Island Whistleblowers’ Protection Act

In Count II of her Amended Complaint, Plaintiff alleges that the Town retaliated against

her in violation of the RIWPA. The Town Defendants argue that they are entitled to summary

judgment on this claim because Plaintiff has released all claims under the RIWPA related to events

prior to February 28, 2013 as part of the Separation Agreement entered into between Plaintiff and

the Town. (Town Defs.’ Mem. Supp. Mot. Summ. J. (Town Defs.’ Mem.) 21-23; Buck’s Mem.

Supp. Mot. Summ. J. (Def. Buck’s Mem.) at 49-50; Hartford’s Mem. Supp. Mot. Summ. J. (Def.

Hartford’s Mem.) 66-67.) The Town Defendants further argue that Plaintiff can assert no valid

RIWPA claims regarding statements or actions of the Town after this date because she lacks

standing, as she was no longer an employee. (Town Defs.’ Mem. 23.)

In response, Plaintiff argues that she is entitled to protection under the RIWPA beyond the

end of her employment with the Town. (Pl.’s Mem. 28.) Moreover, she contends that there is a

genuine issue of fact as to “whether the acts complained of, and that are subsequent to the

Plaintiff’s separation from the Defendant Town qualify as threatening, or otherwise discriminate

against the Plaintiff with respect to the privileges of employment.” Id. at 30.

The RIWPA protects employees who report violations of Rhode Island or Federal law,

regulation, or rule. Specifically, § 28-50-3 states, in pertinent part:

13

“An employer shall not discharge, threaten, or otherwise

discriminate against an employee regarding the employee’s

compensation, terms, conditions, location, or privileges of

employment:

“(1) Because the employee, or a person acting on behalf of the

employee, reports or is about to report to a public body, verbally or

in writing, a violation which the employee knows or reasonably

believes has occurred or is about to occur, of a law or regulation or

rule promulgated under the law of this state, a political subdivision

of this state, or the United States, unless the employee knows or has

reason to know that the report is false, or

. . .

“(4) Because the employee reports verbally or in writing to the

employer or to the employee’s supervisor a violation, which the

employee knows or reasonably believes has occurred or is about to

occur, of a law or regulation or rule promulgated under the laws of

this state, a political subdivision of this state, or the United States,

unless the employee knows or has reason to know that the report is

false. Provided, that if the report is verbally made, the employee

must establish by clear and convincing evidence that the report was

made.” (Emphasis added.)

An “employee” under the RIWPA is defined as “a person employed by any employer, and shall

include, but not be limited to, at-will employees, contract employees and independent contractors.”

Section 28-50-2(1).

1

Pre-Separation Agreement Claims

First, whatever the potential merit of Plaintiff’s claims about alleged violative conduct

contained in her December 2012 and January 2013 letters may have been, any purported

whistleblower status available to her as a result of those allegations was released through the

Separation Agreement she voluntarily and knowingly signed on February 22, 2013. At the

summary judgment stage, this Court asks if there is any issue of material fact as to whether the

Separation Agreement meets all three elements of a valid release. See Guglielmi v. Rhode Island

14

Hospital Trust Financial Corporation, 573 A.2d 687 (R.I. 1990). The Rhode Island Supreme Court

established three factors to be considered when determining the validity of a release: “(1) the

existence of consideration for the release, (2) the experience of the person executing the release,

and (3) the question of whether the person executing the release was represented by counsel.”

Guglielmi, 573 A.2d at 689. Where all three factors are present, “the court will find a release to be

valid and binding unless it has been procured through fraud, misrepresentation, overreaching, or a

material mistake on the part of either party.” Id. (citing Bonniecrest Development Co. v. Carroll,

478 A.2d 555, 559 (R.I. 1984)).

Here, it is undisputed that Burdick signed the Separation Agreement on February 22, 2013

and that she received the consideration she contracted for under the Separation Agreement. See

Am. Compl. ¶¶ 25-26; Town Defs.’ Mem. 21-23. Second, all parties agree that Burdick understood

both the terms and consequences of her release of claims. See Ex. DD 363-64; Am. Compl. ¶ 27;

Town Defs.’ Mem. 21-23; see also Am. Compl. 20, ¶ 96 (seeming to limit all retaliation claims

under Count II to conduct that occurred “[b]etween February 22, 2013, and through the current

date”). Third, there is universal consensus that Burdick was assisted by counsel, both in negotiating

and reviewing the Separation Agreement prior to signing. See Am. Compl. ¶ 27; Town Defs.’

Mem. 21-23. The Amended Complaint contains no allegations of “fraud, misrepresentation,

overreaching, or a material mistake” regarding the Separation Agreement. See Guglielmi, 573 A.2d

at 689. See generally Am. Compl. ¶¶ 25-27. Therefore, there is no issue of material fact about the

validity of the Separation Agreement and any claims that may have existed prior to that date—

including claims under the RIWPA—were voluntarily waived at that time as a matter of law.

15

2

Post-Employment RIWPA Claims

Next, the parties dispute whether Plaintiff may bring claims under the RIWPA for actions

that occurred after the termination of Plaintiff’s employment with the Town. Plaintiff argues,

citing the United States Supreme Court decision in Robinson v. Shell Oil Co. and other federal

cases, that she is entitled to continued protection under the RIWPA beyond the date of her

separation from the Town’s employ. (Pl.’s Mem. at 28 (citing Robinson v. Shell Oil Co., 519 U.S.

337, 346 (1997))). She contends that there is a genuine issue of material fact as to whether the

Town discriminated against her with respect to her privileges of employment by releasing alleged

confidential or protected information. Id. at 35-38. Generally, Plaintiff argues that “[c]onstruing

[the RIWPA] in a manner which would allow disgruntled employers to threaten or otherwise

discriminate against an employee regarding the former employee’s privileges of employment,

including the right to seek future employment, is inconsistent with the purpose of the statute.”

(Pl.’s Mem. at 32-33.)

The Town Defendants respond that the RIWPA is not ambiguous, unlike the statute at issue

in Robinson, and that the “text of the statute strongly indicates that its protections are limited to

current employees.” (Town Defs.’ Reply Mem. 5.) Furthermore, the Town Defendants argue,

none of the actions alleged to have taken place post-employment can fairly be classified as

“discrimination” against Plaintiff “‘regarding [her] compensation, terms, conditions, location, or

privileges of employment’ so as to fall under the terms of the RIWPA.” Id. at 6 (quoting § 28-50-

3).

In Robinson, the United States Supreme Court interpreted the term “employees” as related

to federal claims under Title VII. Robinson, 519 U.S. at 346. The Supreme Court found the term

16

within that statutory scheme to be ambiguous because it lacked a temporal qualifier and could

reasonably be interpreted to include former employees. Id. at 342. Moreover, before Robinson,

some federal courts interpreted the anti-retaliation provisions in Title VII to include former

employees. See Charlton v. Paramus Board of Education, 25 F.3d 194, 200 (3d Cir. 1994) (finding

that “courts that have extended anti-retaliation protection have done so where the retaliation results

in discharge from a later job, a refusal to hire the plaintiff, or other professional or occupational

harm”); Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C. Cir. 1991) (finding that

the term “employee” had been interpreted broadly under Title VII retaliation claims).

State courts, however, have differed in their interpretation of the scope of particular state

whistleblower or anti-retaliation statutes. Compare Psy-Ed Corp v. Klein, 947 N.E.2d 520, 531

(Mass. 2011) (finding that an adverse employment action need not necessarily target a current

employee under a Massachusetts statute) with Guercio v. Production Automation Corp., 664

N.W.2d 379, 389 (Minn. Ct. App. 2003) (distinguishing Robinson and finding that a Minnesota

whistleblower statute does not apply to former employees or actions that occur following

termination) and Murray-Obertein v. Georgia Government Transparency and Campaign Finance

Commission, 812 S.E.2d 28, 30 (Ga. Ct. App. 2018) (interpreting the Georgia whistleblower

statute to include a temporal limitation barring claims from a former employee for alleged

retaliatory acts following the end of her employment).

The Rhode Island Supreme Court has not yet weighed in on the scope of the term employee

as it relates to the RIWPA, and case law on this statute is somewhat limited. The Court recently

addressed an ambiguity in the RIWPA in its decision in Crenshaw v. State, 227 A.3d 67 (R.I.

2020). In Crenshaw, the plaintiff brought a claim against his current employer for protection under

the RIWPA based on reporting violations to his previous employer. Crenshaw, 227 A.3d at 69-

17

70. The Court noted that an ambiguity existed within the statute with respect to the identity of the

employer in the statute because “[w]hile § 28-50-3 clearly provides protection to an employee who

reports a violation of certain laws (and regulations or rules) to a public body or refuses to

participate in such a violation, it does not precisely indicate the identity of the employer named as

the subject of such a report.” Id. at 72. The Court further found that “the General Assembly’s

deliberate choice to speak in the present tense rather than the past tense is indicative of a legislative

intent to protect activity that occurs while the employee is in the employ of his or her present

employer or his or her immediately preceding employer.” Id. at 73. The Court ultimately

determined that the plaintiff’s “activity is not protected under the [RIWPA] because the activity

occurred while [plaintiff] was not employed by the defendants and involved violations of law

allegedly committed by a previous employer.” 6 Id. at 74.

Under Rhode Island principles of statutory construction, “[w]here the terms of a statute are

clear, a court must give the words their plain and obvious meaning.” Marques v. Fitzgerald, 99

F.3d 1, 5 (1st Cir. 1996). “[A] statute may not be construed in a manner that results in absurdities

or defeats its underlying purpose.” Id. It is clear that the plain language of the RIWPA restricts

the employer’s behavior only with regard to an “employee” and to certain actions taken by the

employer against the employee, including those relating to “compensation, terms, conditions,

location, or privileges of employment.” See § 28-50-3 (“An employer shall not discharge, threaten,

or otherwise discriminate against an employee regarding the employee’s compensation, terms,

conditions, location, or privileges of employment.”) The purpose of this statute is to foster

6 In her supplemental memorandum, Plaintiff argues that Crenshaw v. State is distinguishable from

the case at bar. (Pl.’s Response to Defs.’ Notice of Suppl. Authority 3-6.) To be sure, the facts and

precise RIWPA issue at bar differ from those in Crenshaw. However, the Court’s analysis of the

RIWPA remains instructive here.

18

compliance with Rhode Island laws by providing protection to whistleblowers who report

violations on behalf of the state. Malone v. Lockhead Martin Corporation, C.A. No. 07-065ML,

2009 WL 2151706, at *12 (D.R.I. 2009). Moreover, the public policy behind the statute is “to

protect those employees who do report such violations from retaliatory action by employers.”

Marques, 99 F.3d at 6 (emphasis added). No party to this action argues that at any point after

February 22, 2013, when she signed the Separation Agreement, Plaintiff was an employee of the

Town. Necessarily, then, Plaintiff lacks the requisite standing to advance any claims based on

events that occurred after that date under the RIWPA. Additionally, the pertinent language in the

Separation Agreement states that Burdick agreed to release all claims “that [she] may have or have

had against any Released Parties from the beginning of time to the date of [her] signing of this

Letter Agreement, and including those arising from [her] employment or its termination, whether

under any state or federal statute, or under the common law.” (Dep. Ex. G 461 (emphasis added).)

All subsequent claims advanced by Plaintiff arise from the circumstances of her employment with

the Town and those surrounding her termination. (Am. Compl. ¶¶ 29-94, 96.) While the Separation

Agreement also preserves “rights or claims that may arise after the date of execution,” no such

right or claim can arise under the RIWPA after Plaintiff left the employ of the Town. Dep. Ex. G

462; see § 28-50-3. Moreover, even if Plaintiff had standing to bring claims for actions taken after

the end of her employment, she has not demonstrated a material issue of fact that the Town’s

purported post-employment actions discriminate against her with respect to her “privileges of

employment.”

Therefore, having waived her claims before February 22, 2013 and lacking standing to

advance those alleged to have arisen after, there are no remaining issues of material fact regarding

19

whether Plaintiff has set forth a prima facie case under the RIWPA. Consequently, the Town

Defendants are entitled to summary judgment on Count II.

B

Defamation and False Light

1

Defamation

The Plaintiff argues that there is substantial evidence in the record that she was defamed,

the statements in question were not privileged, and the Defendants acted with actual malice. (Pl.’s

Mem. 56.) The Plaintiff also alleges that, at the very least, there are genuine issues of material fact

related to each of the defamatory statements. (Pl.’s Mem. 28.)

Our Supreme Court has confirmed that “[t]o prevail in a defamation action, a plaintiff must

prove: ‘(a) a false and defamatory statement concerning another; (b) an unprivileged publication

to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d)

damages, unless the statement is actionable irrespective of special harm.’” Burke v. Gregg, 55

A.3d 212, 218 (R.I. 2012) (quoting Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007) (further

quotations omitted)). A defendant “may avoid liability if he or she is privileged to make the

statement in question.” Mills v. C.H.I.L.D., Inc., 837 A.2d 714, 720 (R.I. 2003) (citing Swanson v.

Speidel Corp., 110 R.I. 335, 339-40, 293 A.2d 307, 310 (1972)). The Court must decide whether

the statements made by the Defendants were defamatory as a matter of law. See Mills, 837 A.2d

at 719. In demonstrating a claim for defamation, a plaintiff “carries a substantial burden.” Alves v.

Hometown Newspapers, Inc., 857 A.2d 743, 750 (R.I. 2004). Moreover, a public official or

limited-purpose public figure bringing a defamation claim based on statements made regarding

their official conduct must show that “the statement was made with ‘actual malice,’” rather than

20

the typical negligence standard. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964);

Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974). Whether a plaintiff is a public official or

public figure are also questions of law. Hall v. Rogers, 490 A.2d 502, 505 n.3 (R.I. 1985) (citing

Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); DeCarvalho v. daSilva, 414 A.2d 806, 813 (R.I.

1980)); cf. Gertz, 418 U.S. at 351.

i

Public Official, Public Figure, Public Controversy

The Town Defendants argue that Plaintiff is a public official, thus subjecting her

defamation claims to the higher “actual malice” standard articulated in New York Times Co., 376

U.S. at 279-80. (Town Defs.’ Mem. 19-20.) Moreover, the Town Defendants argue, even if

Plaintiff does not meet the requirements for a public figure, she separately may be classified a

limited-purpose public figure under Gertz. (Town Defs.’ Reply Mem. 7.) Similarly, Defendant

Kinder argues that Plaintiff is a public figure based on her employment as the Zoning Enforcement

Officer and her claims are based on her employment in that position. (Def. Kinder’s Mem. 10.)

Defendant Buck asserts that Plaintiff is required to show “actual malice,” based on her status as a

“limited public figure” by virtue of her attorney’s public statements on Plaintiff’s behalf. (Def.

Buck’s Am. Mem. 56-57.) Defendant Hartford suggests that Plaintiff is “[a]t the very least . . . a

public figure for the limited purposes of the Copar matter and her own employment relationship

with the Town.” (Def. Hartford’s Mem. 41.)

Conversely, Plaintiff contends that she is not a public official because (1) the facts

surrounding the end of her employment with the Town were not made a public matter, and (2)

Plaintiff did not “interject[] herself into a public matter.” (Pl.’s Mem. 42-43.) Moreover, Plaintiff

21

argues, even if her separation from the Town was a public matter in February of 2013, the matter

ended as of February 23, 2013. Id. at 43.

In Rosenblatt, the Supreme Court clarified its definition of public official, determining that

government employees who “have, or appear to the public to have, substantial responsibility for

or control over the conduct of governmental affairs” would qualify and thus be subject to the higher

“actual malice” standard. Rosenblatt, 383 U.S. at 85. Defendants argue that, as was the case for

the plaintiff in Rosenblatt, Burdick’s role in the Town’s zoning enforcement had “such apparent

importance that the public has an independent interest in the qualifications and performance of the

person who holds it, beyond the general public interest in the qualifications and performance of all

government employees.” Id. at 86; Town Defs.’ Mem. at 18-20.

As ZEO, Burdick was considered the chief administrative officer for the Zoning Board of

Review, who was charged with the administration and enforcement of zoning, and this position

gave her substantial responsibility for enforcement of zoning laws in the town. Ex. P 99-100;

Westerly Code of Ordinances § 260-21 (Zoning Official). Furthermore, because she was often the

face of the Town’s zoning decisions, it is undisputed that the public took an active interest in her

decisions and involvement in controversies such as the Copar matter. (Ex. DD 247-48, 259-60.)

This is evidenced by the public’s behavior toward Burdick when they had grievances over zoning

decisions made during that controversy. Id. Plaintiff’s contention that her employment was never

a public issue is unsupported by the filings, which include multiple news articles about her

employment. See, e.g., Ex. P 99-100. Therefore, this Court finds that there are no issues of material

fact surrounding Plaintiff’s status as a public official during her time as ZEO.

Regarding the alleged defamatory publications that occurred after Plaintiff was no longer

ZEO, this Court finds that Plaintiff was a limited-purpose public figure. Gertz, 418 U.S. at 345.

22

“[I]nquiring into the nature and extent of [Plaintiff’s] participation in the particular controversy

giving rise to the defamation,” this Court finds no issue of material fact regarding the reference of

all alleged defamatory statements7 to Plaintiff’s employment as ZEO or conduct while ZEO, which

had bearing on the Copar matter. Major v. Drapeau, 507 A.2d 938, 941 (R.I. 1986). It is true that

Plaintiff did not initiate the re-emergence of her name in connection with the Copar controversy

in 2015—that was done by Mr. Lombardo. (Ex. R 103.) However, the behavior of Plaintiff’s

counsel in 2015, appearing at multiple public meetings to make accusations and arguments on her

behalf, was clearly meant to “engage the public’s attention in an attempt to influence its outcome.”

Ex. U 112-114; Town Defs.’ Reply Mem. 9; see Gertz, 418 U.S. at 352; Major, 507 A.2d at 941

(finding plaintiff a public figure where he “actively sought publicity by issuing statements to the

press”); see also Capuano v. Outlet Co., 579 A.2d 469, 473 (R.I. 1990) (finding that, where

plaintiffs made “efforts to resolve this matter, [they] injected themselves into the public’s eye, if

only for the limited purposes of this controversy”). When an individual involves themselves

prominently in public affairs and debates, they become limited-purpose public figures who have

assumed the risk of defamation. See Gertz, 418 U.S. at 345 (stating that “those classed as public

figures have thrust themselves to the forefront of particular public controversies in order to

influence the resolution of the issues involved. . . . invit[ing] attention and comment”).

Consequently, all of Plaintiff’s claims of defamation are subject to the higher actual malice

standard. Hall, 490 A.2d at 504; see Gertz, 418 U.S. at 351.

7 The Court refers to all such statements that clearly refer to Plaintiff.

23

ii

The Statements at Issue

In her Amended Complaint,8 the Plaintiff identified several statements by various Town

employees or former employees as defamatory. Defendants claim that the statements are true,

opinion, privileged, or “do not relate to Burdick at all.” (Town Defs.’ Mem. 10-16; Def. Buck’s

Mem. 40, 58-59; Def. Kinder’s Mem. 8-9; Def. Hartford’s Mem. 44, 49-53.) Burdick insists that

they are false, they are not privileged, and there is a genuine issue of material fact as to whether

the statements were made with reckless disregard for the truth. (Pl.’s Mem. 46-47.) Defendants

contend that Burdick has not presented clear and convincing evidence that the Defendants made

any of these statements with actual malice. (Town Defs.’ Reply Mem. 13.)

The Court’s “first inquiry must be whether there is a ‘false statement of fact.’” Cullen v.

Auclair, 809 A.2d 1107, 1110 (R.I. 2002). If any of the statements are found to be opinion, the

Court will apply the rule articulated in Burke, and Cullen. See Burke, 55 A.3d at 221; Cullen, 809

A.2d at 1110-11. Where the statements represent assertions of fact, the truth of a statement is an

absolute defense in defamation cases. DeCarvalho, 414 A.2d at 810 (citing Restatement (First) of

Torts § 582 (1938)) (stating that, even under earlier Rhode Island law, “[t]he prevailing rule was

that truth was a complete defense to liability in any action for defamation”). If any are found to be

indisputably false, the Court will assess whether those statements were privileged. Mills, 837 A.2d

at 720. Lastly, the Court will apply the standard of New York Times Co. and consult the record to

determine if there was clear and convincing evidence that the Defendants knew the statements

8 The Court makes every effort to construe Plaintiff’s Amended Complaint so as to do substantial

justice. Super. R. Civ. P. 8(f); see also Super. R. Civ. P. 15. However, following the Rhode Island

Supreme Court in Mills, this Court “decline[s] to review [any] alleged statement as a possible

source of defamation against plaintiff [where] she failed to raise [it] in her complaint.” 837 A.2d

at 721 n.2.

24

were false or acted with reckless disregard for their potential falsity. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 254 (1986); Capuano, 579 A.2d at 471-72; Swanson, 110 R.I. at 341, 293 A.2d

at 311. The “reckless or knowing falsity test . . . is inapplicable when the contested statement is an

idea or an opinion . . . rather than a fact.” Cullen, 809 A.2d at 1110.

a

The Town Defendants

Plaintiff’s Amended Complaint alleges that employees and agents of the Town of Westerly

made defamatory statements “at public meetings and in the local press.” (Am. Compl. 21.) The

Town Defendants argue that none of the six statements quoted or reported in the Westerly Sun and

attributable to the Town Defendants meet the standard for defamation. (Town Defs.’ Mem. 10-

11.) Specifically, the Town Defendants contend that the statements are true, do not relate to

Plaintiff, or are otherwise not defamatory. Id. at 11. Plaintiff generally argues that all of the

Defendants’ statements are defamatory on their face and that even if the statements were opinions,

there is a question of fact as whether the facts underling those opinions are defamatory. (Pl.’s

Mem. 45-46.) The Court examines each statement in turn.

i

March 23, 2013 and March 29, 2013 Statements

First, the March 23, 2013 and March 29, 20213 statements at issue involve the reliance of

Town employees on the Kerbel report. See Dep. Ex. D 450-57. First is Mr. Ritacco’s March 23,

2013 declaration to the Westerly Sun that “I know that the Town has taken these allegations

seriously and has investigated each of them and has found that there is no basis or merit to any of

25

them.”9 (Ex. M 94.) Second is the Town Council’s joint statement on March 29, 2013 that

“Burdick’s claims had been investigated and found to be untrue.” (Ex. P 100.) Ritacco’s statement

contains three assertions of knowledge: (1) that the Town took Burdick’s allegations seriously, (2)

that the Town investigated each of the allegations, and (3) that the Town found no basis or merit

to the allegations. See Ex. M 94 (framing Ritacco’s statement as “address[ing] Burdick’s

accusations against town employees”). The Town Council’s statement echoes Ritacco’s second

and third assertions.

The very existence of the Kerbel report is evidence that the Town took the allegations

seriously and investigated them. Therefore, the first two assertions made by Ritacco were true.

Furthermore, in his report,10 Kerbel stated that, after “reviewing the allegations made by Ms.

Burdick and her attorney, [he] did not find anything of substance.” (Dep. Ex. D 455.) He concluded

that:

“Ms. Burdick’s consideration of an employment opportunity with

COPAR was a serious lapse in judgment that in my experience could

warrant the most severe disciplinary measures. . . . Ms. Burdick

seems to have taken the normal disagreements that occur in

municipal governments as creating a ‘hostile environment’ for her

or characterized them as evidence of improper, unethical or even

unlawful activity by others. I found no basis for her

characterizations.” Id.

Even with the alleged bias that Plaintiff claims existed by virtue of Kerbel’s employment with

Defendant Kinder (Pl.’s Mem. 10-14), it is not unreasonable or reckless for Ritacco and Town

Council to have relied on the conclusions arrived at in the Kerbel report. See Hall, 490 A.2d at

9 At the time this statement was made, Ritacco was serving as Chairman of the Zoning Board of

Review for the Town. See id.; Westerly Code of Ordinances § 260-24(A)(5) (Zoning Board of

Review, Chairperson). 10 As discussed supra, Plaintiff, through counsel, declined to take part in Kerbel’s investigation.

See Ex. D 450.

26

505. Furthermore, it is substantially true that the Town found the allegations to be without merit

as a result of the investigation. True statements are absolutely privileged. See R.I. Const. art. 1, §

20; § 9-6-9; DeCarvalho, 414 A.2d at 810.

ii

Defendant Serra’s February 13, 2015 Statement

The Town Defendants next argue that Defendant Serra’s statement on February 13, 2015,

describing the nature of Hartford and Burdick’s departure from the employ of the Town with the

phrase “[t]hey were both let go,” was not defamatory because it did not impute conduct which

would injure Burdick’s reputation. Ex. S 106; Town Defs.’ Mem 13. At the time Serra made this

statement, she was a member of the Town Council. See id.; Westerly Town Charter Art. II (Town

Council). Our Supreme Court has confirmed that “[s]o long as the gist or the sting of the

publication is true, the publication is not false.” Healey v. New England Newspapers, Inc., 555

A.2d 321, 325 (R.I. 1989); see Swerdlick v. Koch, 721 A.2d 849, 860 (R.I. 1998); Restatement

(Second) of Torts, § 581A, cmt. F, at 237 (1977) (noting that “[s]light inaccuracies of expression

are immaterial provided that the defamatory charge is true in substance”).

The “gist” of Serra’s statement was that Burdick was no longer an employee of the Town.

Burdick argues that being “let go” implies that she was involuntarily terminated. (Am. Compl.

¶ 44; Pl.’s Mem. 20.) However, “[c]ommunication, by its very nature, does not occur in a vaccum;

there is always some context,” Burke, 55 A.3d at 219, and “[w]hen considering whether a statement

or conduct is defamatory, the court must take into account ‘the context of the statement in which

the publication occurs and the plain and ordinary meaning of the words in the community in which

the publication occurred.’” Alves, 857 A.2d at 750-51 (quoting DiBattista v. State, 808 A.2d 1081,

1088 (R.I. 2002)). It is true that the third definition for the term “let go” is “to cease to employ;

27

dismiss.” Let go, The Random House Dictionary of the English Language (2d ed. 1987). But, when

read in the context of the article in which it appears, which clearly states that both Burdick and

Hartford resigned, Serra’s statement is no longer susceptible to the interpretation that Burdick

accords it and finds objectionable. See Ex. S 105-06 (using language such as “[i]n the months

leading up to her resignation in early 2013” and “Hartford, who resigned”). Given this context and

acknowledging that the “decisive inquiry . . . ‘is what the person to whom the communication was

published reasonably understood as the meaning intended to be expressed,’” this statement is also

not defamatory. Swerdlick, 721 A.2d at 860 (quoting Lyons v. Rhode Island Public Employees

Council 94, 516 A.2d 1339, 1343 (R.I. 1986)).

iii

Duhamel’s Statement Regarding a State Police Investigation

The Town Defendants next challenge Plaintiff’s defamation allegation based on a

statement made by Duhamel in February of 2015 regarding a request for a State Police

investigation into Lombardo’s accusations that Plaintiff extorted the Town. Town Defs.’ Mem. 14;

Am. Compl. ¶ 46. The Town Defendants argue that taken in context, Duhamel did not accuse

Burdick of wrongdoing and that a qualified privilege applies to this statement. Id. The Court

agrees.

Rhode Island has recognized a qualified privilege for individuals to make reports of

wrongdoing to law enforcement, where the report is made in good faith. See Butera v. Boucher,

798 A.2d 340, 351 (R.I. 2002); Mills, 837 A.2d at 720. Furthermore, a qualified privilege applies

when the person making the report ‘“reasonably believes that he has a legal, moral, or social duty

to speak out, or that to speak out is necessary to protect either his own interests, or those of third

28

person[s], or certain interests of the public.”’ Mills, 837 A.2d at 720 (quoting Ponticelli v. Mine

Safety Appliance Co., 104 R.I. 549, 551, 247 A.2d 303, 305-06 (1968)).

As President of the Town Council and therefore “head of the town government for all

ceremonial purposes,” Duhamel balanced his duties to the Town’s reputation and his duty to

Burdick as a former Town employee, stating “I want to be above board. I don’t find (evidence of

wrongdoing) but I’ll let the state police tell us.” See Ex. T 109; Mills, 837 A.2d at 720; Ponticelli,

104 R.I. at 552, 247 A.2d at 306; Westerly Town Charter Art. II, Ch. I, § 2-1-6. Furthermore,

Burdick admitted in her deposition that she understood that Duhamel was not accusing her of any

wrongdoing. See Ex. DD 392 (stating that “[h]e didn’t think there was a crime” and “I have read

in the paper that he has said that he did not believe that I committed a crime”). Therefore,

Duhamel’s call for a State Police investigation was made under a good faith belief that he had a

duty to speak out to protect the interest of the public. The statement did not attribute direct

wrongdoing to Plaintiff; furthermore, it is privileged, and because there is no evidence of common-

law malice, it is not defamatory. Belliveau v. Rerick, 504 A.2d 1360, 1363 (R.I. 1986) (holding

that, where a qualified privilege has been found, the question is “whether the plaintiff had raised,

in opposition to the motion for summary judgment, a genuine issue of material fact in respect to

common-law malice”).

iv

Duhamel’s March 10, 2015 Statement

On March 10, 2015, the Westerly Sun published the next statement that Plaintiff alleges to

be defamatory when it reported that, “Duhamel defended Kinder’s representation . . . but said he

did not recall being informed that Burdick had made claims under the [Whistleblower’s Protection]

29

act. Duhamel also said Burdick made her claims after town officials accused her of working for

Copar at the same time she was employed by the [Town].” (Ex. V 115.)

The statement attributed to Defendant Duhamel, while not a direct quote, clearly contains

two assertions in its published form. The Court finds compelling Town Defendants’ argument

regarding Duhamel’s first assertion; they claim that the statement that “he was unaware that

Burdick’s claims were made under RIWPA” was not a statement about Burdick but one regarding

Duhamel’s own recollections. See Cullen, 809 A.2d at 1111; Town Defs.’ Mem. 15. The first

assertion is thus one of opinion, which is not defamatory unless “it implies the allegation of

undisclosed defamatory facts as the basis for the opinion.” Burke, 55 A.3d at 220-21. That is not

the case here, as the state of Duhamel’s memory does not impugn Plaintiff’s reputation.

The second March 10, 2015 assertion attributed to Duhamel, that Plaintiff “made her

claims” after being accused of working for Copar while still employed by the Town, is open to

multiple interpretations. Context here implies that Duhamel was referencing Plaintiff’s waived

claims under the RIWPA. (Ex. V 115.) Plaintiff’s meeting with Hartford to discuss her

correspondence with and job offer from Copar occurred on January 16, 2013. (Dep. Ex. C 448-

49.) The first email from Plaintiff’s counsel that explicitly referenced the RIWPA was also sent on

January 16, 2013. (Ex. F 8-9.)

Yet, even if there is a material issue of fact regarding the falsity of Duhamel’s second

assertion, the Plaintiff has not alleged sufficient facts to show actual malice by clear and

convincing evidence. Plaintiff contends that there is a material issue of fact as to actual malice

relating to this statement because Duhamel’s comment was “wrong in several respects based upon

the specific findings of the Kerbel report.” (Pl.’s Mem. 51.) However, the context of the second

assertion, immediately following Duhamel’s recollection that he did not remember being apprised

30

of Plaintiff’s RIWPA claims, indicates that he did not have actual knowledge that his statement

was false. (Ex. V 115.) Furthermore, the Court finds no factual issue as to whether Duhamel had

“a high degree of awareness of the probable falsity” of his second assertion, which is required for

a finding of reckless disregard. See Hall, 490 A.2d at 505 (citing St. Amant v. Thompson, 390 U.S.

727, 731 (1968)). Nor have any facts been alleged that would show Duhamel had “serious doubt

. . . concerning its truth.” Major, 507 A.2d at 942. Duhamel’s mere failure to verify his information

does not make his statement defamatory. Hall, 490 A.2d at 505. As a result, his statement does not

meet the standard for actual malice under New York Times Co., which established “[a] defense for

erroneous statements honestly made” in the context of criticizing conduct by public officials. 376

U.S. at 278.

v

Defendant Serra’s March 10, 2015 Statement

Next, the Town Defendants argue that Defendant Serra’s March 15, 2015 statement

regarding Buck’s missing emails was not defamatory because it cannot be attributed to actions

taken by Burdick or is otherwise opinion. See Town Defs.’ Mem. 17; Ex. W1 121. The Court

agrees.

Defendant Serra was quoted in The Westerly Sun as commenting “I don’t think anything

was done wrong by Michelle Buck. This was either done by someone prior to their leaving or it’s

an inside job.” Ex. W1 121. There is no support in the record before the Court for the assumption

Plaintiff makes that Serra’s statement refers to her. The use of the indeterminant pronoun

“someone” within the context of the larger statement, arguing against Buck’s culpability for the

missing emails, only supports the reasonable reading that Serra was making a statement of support

for Buck. Ex. W1 121; see Alves, 857 A.2d 755 (finding inference of allegation insufficient to

31

support defamatory meaning where statement’s context showed “clear . . . larger purpose”).

Stronger language or more suggestive context would be necessary to support Plaintiff’s reading

that Serra meant to imply Burdick was the “someone” who deleted those emails. See someone, The

American Heritage College Dictionary (3d ed. 1992) (“An unspecified or unknown person;

somebody.”). This statement is not clearly about Burdick and thus cannot defame her. New York

Times Co., 376 U.S. at 288 (establishing that evidence is constitutionally defective where it is

“incapable of supporting [a] finding that the allegedly libelous statements were made ‘of and

concerning’” claimant); Budget Termite & Pest Control, Inc. v. Bousquet, 811 A.2d 1169, 1172

(R.I. 2002) (noting that “a defamatory statement must be a false statement concerning a particular

existing entity”).

The Court has found the alleged defamatory statements attributed to the Town Defendants

to be true, opinion, or that Plaintiff has not demonstrated by clear and convincing evidence that

the statements were made with actual malice. Consequently, the Town Defendants are entitled to

judgment as to Counts III, VI, VIII, and X.

b

Individual Defendants

The individual Defendants similarly challenge Plaintiff’s defamation claims and argue that

they are each entitled to summary judgment on those counts. The Court reviews each statement

attributed to the individual Defendants in turn.

i

Defendant Buck

In Count XII of the Amended Complaint, Plaintiff asserts a claim for defamation against

Defendant Buck for statements made “at public meetings and in the local press.” More specifically,

32

Plaintiff takes issue with Defendant Buck’s March 5, 2015 clarifications to reporter Faulkner

regarding Buck’s 2013 response11 to the reporter’s APRA request. See Dep. Ex. NN 828; Ex. V

115 (Westerly Sun news article, stating “Kinder and Town Manager Michelle Buck, who was the

town’s solicitor at the time, maintain that correspondence between Massad and town officials in

the months leading up to her departure was aimed at securing a severance package and did not

constitute a whistleblower claim”). Faulkner wanted to know why Burdick’s December 2012 and

January 2013 letters through counsel were not responsive to his request for claims made under the

RIWPA. (Dep. Ex. NN 828-29.) Buck replied to Faulkner’s 2015 query by stating that she had

consulted with Defendant Kinder in 2013 and that their response was “fully supported by the law.”

Id. at 828.

Defendant Buck argues that the March 2015 reply to Faulkner’s query and the underlying

response in February of 2013 were both true because Burdick’s December 2012 and January 2013

letters to the Town did not constitute claims against the Town, and therefore her response to

Faulkner cannot be defamatory. (Def. Buck’s Am. Mem. Law Supp. Mot. Summ. J. (Def. Buck’s

Am. Mem.) 42-47.) Buck also contends that notwithstanding the accuracy of her response to

Faulkner, her March 2015 statement was not defamatory as a matter of law because the statement

offered only a legal opinion regarding the status of documents relating to a whistleblower action

and did not comment on Burdick’s purported status as a whistleblower. Id. at 48-49. Lastly, Buck

11 The Court notes that any claim for defamation based on Defendant Buck’s reply to the APRA

request from Westerly Sun reporter Faulkner on February 15, 2013 that “we do not believe that

any documents exist that are responsive to your request” would be precluded by the Separation

Agreement. See Dep. Ex. MM 827; Am. Compl. ¶ 23. At the time this statement was made,

Defendant Buck was employed by the Town as Town Solicitor and Burdick was still employed as

ZEO. See Def. Buck’s Mem. 5; Westerly Town Charter Art. XIII, Ch. I, §§ 13-1-1, et seq. (Town

Solicitor). Consequently, any defamation claim based on this statement was released under the

Separation Agreement Plaintiff signed on February 22, 2013, which also released claims for

“tortious acts” such as defamation. See supra Section III.A; see also Dep. Ex. G 461, ¶ 5(a).

33

states that a qualified privilege applied to this statement and that Burdick cannot show that malice

motivated this statement. Id. at 52-54.

Without descending into the debate over the meaning of the term “claim” that Plaintiff and

Defendants include in their filings, the Court recognizes that such a debate, particularly among

lawyers, is not frivolous. See Def. Buck’s Mem. 42-45, 50, 58-59; Pl.’s Mem. 22-23, 46; see also

Nix v. Hedden, 149 U.S. 304, 13 S. Ct. 881, 882 (1893) (turning on the “definitions of the words

‘fruit’ and ‘vegetables’”); Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.

Supp. 116, 117 (S.D.N.Y. 1960) (finding that “[t]he issue is, what is chicken?”); Cathay Cathay,

Inc. v. Vindalu, LLC, 962 A.2d 740, 747 (R.I. 2009) (finding, “in the context of Gourmet India’s

lease[,] the sale or use of basmati rice is excluded from the general prohibition of the sale of ‘white

rice or fried rice’”). Buck was an attorney in the employ of the Town, rendering a nonfrivolous

legal opinion. (Def. Buck’s Mem. 5.) Such opinions are not, by definition, false or defamatory, as

implying legal knowledge and analysis does not imply defamatory facts not publicly available.

Cullen, 809 A.2d at 1110-11. Consequently, a statement that a prior legal opinion is “fully

supported by the law” is also not defamatory. Defendant Buck is entitled to summary judgment

on this claim.

ii

Defendant Kinder

Plaintiff attributes two allegedly defamatory statements to Kinder, one statement from

March 6, 2015 and statements made at a town meeting on March 16, 2015. (Pl.’s Mem 39-40.)

First, Plaintiff’s allegation regarding Kinder’s March 6, 2015 claim mirrors Plaintiff’s claim for

defamation relating to Defendant Buck’s statement to Faulkner about his APRA request. See Am.

Compl. ¶ 83-86; Pl.’s Mem. 39-40; Def. Kinder’s Mem. of Law in Reply to Pl.’s Opp’n to Mot.

34

for Entry of Summ. J. (Def. Kinder’s Reply Mem.) 5). Defendant Kinder incorporates by reference

the arguments made by Defendant Buck as to this claim for defamation, and further asserts that

this claim should be dismissed because in her deposition, Plaintiff testified that she was not aware

of Defendant Kinder’s March 6, 2015 statement. Id. at 3-4. As the Court found that Defendant

Buck’s statement regarding the clarification to Faulkner’s APRA request was not defamatory, the

same is true for the claim against Defendant Kinder. Consequently, Plaintiff cannot sustain a

defamation claim against Defendant Kinder based on the alleged March 6, 2015 comment.

Turning to the March 16, 2015 statement, Plaintiff’s Amended Complaint details several

alleged false statements regarding her employment generally and the Copar matter. (Am. Compl.

¶ 63-64.) At the time these statements were made, Kinder was employed as special counsel by the

Town.12 (Def. Kinder’s Mem. 3.) Plaintiff first alleges claims for defamation as to Kinder’s

assertions that her job performance had suffered due to “[d]ifficulties in her personal and work

related pressures,” she had attendance issues and had “exhausted her sick leave,” and she had

become “increasingly erratic in her ability to perform job functions essential to the ZEO.” (Am.

Compl. ¶ 63(a), (b), and (c).)

In Marcil, the Rhode Island Supreme Court addressed the level of injury necessary to

establish that a statement relevant to a plaintiff’s business reputation is defamatory per se:

“[The statement must] charge[ ] improper conduct, lack of skill, or

integrity in ones profession or business, and [be] of such a nature

that it is calculated to cause injury to one in his profession or

business. . . . [D]isparagement of a general character, equally

12 Defendant Kinder also argues that he is not liable for any claims because he was acting as an

agent of a disclosed principal within the scope of his authority. (Def. Kinder’s Mem. 8.) “It has

long been settled that an agent acting on behalf of a disclosed principal is not personally liable to

a third party for acts performed within the scope of his authority.” Cardente v. Maggiacomo

Insurance Agency, Inc., 108 R.I. 71, 73, 272 A.2d 155, 156 (1971). Plaintiff does not address this

argument in her briefing. Because the Court finds that Kinder is entitled to summary judgment on

all claims against him, see infra, it need not address this issue.

35

discreditable to all persons, is not enough unless the particular

quality is peculiarly valuable to the plaintiffs business or

profession.” 936 A.2d at 213.

These allegations are unlike those made in Swanson, for example, where the plaintiff claimed that

“repeated publications of defamatory allegations concerning his working habits and honesty” had

been made by his former employer to prospective future employers. Swanson, 110 R.I. at 336-38,

293 A.2d at 308-09 (holding that even those statements were conditionally privileged). Here, as

Defendant Kinder pointed out, he was relating to the public what had been related to him, using

clear language to convey his reliance on that information. See Ex. L 86; Def. Kinder’s Mem. 4-5,

8-9. His assertions conveyed information about the Town’s conflict with Burdick “as it was relayed

to [him]” and characterizations of Plaintiff made “in the view of the people [he] was talking with,”

while also making clear what he “d[id]n’t recall being told.” (Ex. L 87.) Absent evidence to the

contrary, this Court finds Kinder’s statements regarding what he was told were true.

Plaintiff also objects to Kinder’s statements regarding her purported Copar conflict, her

December 2012 and January 2013 allegations of wrongdoing by various public officials, and the

details of the Kerbel report. (Am. Compl. ¶¶ 63(d) and (e), (e)13 and (f), and 64.) The assertions

regarding the underlying merit of her prior allegations and the Kerbel report simply mirror earlier

alleged defamatory statements, none of which have been found to be defamatory. Kinder’s

explanation of the bases for the legal opinions he gave to the Town are also not defamatory, for

example, his impression that Plaintiff’s letter through counsel in December 2012 “read like a

typical plaintiff’s attorneys letter when they are looking to work it out so that their client gets a

package to leave employment, that was the way it read to me as somebody who’s been do[i]ng this

13 Paragraph 63 of Plaintiff’s Amended Complaint contains two subsections labelled (e). (Am.

Compl. 14.)

36

for many many years.” (Ex. L 86.) The implied facts in Kinder’s legal opinions relate to past clients

and past legal cases, not to undisclosed defamatory facts about Plaintiff. As established above,

such opinions are not defamatory. Finally, as with Duhamel’s statement about the timing of the

Copar conflict confrontation, Kinder’s statements on the same topic are substantially true. Given

the multiple caveats Kinder provided to the public about the sources of his knowledge about

Plaintiff’s conduct as an employee of the Town, and the already public nature of the Copar conflict

matter, no defamation is present in Kinder’s presentation on behalf of the Town. See Gertz, 418

U.S. at 344-45 (“[S]ociety’s interest in the officers of government is not strictly limited to the

formal discharge of official duties. . . . [T]he public’s interest extends to ‘anything which might

touch on an official’s fitness for office. . . . Few personal attributes are more germane to fitness for

office than dishonesty, malfeasance, or improper motivation, even though these characteristics

may also affect the official’s private character.’” (quoting Garrison v. State of Louisiana, 379 U.S.

64, 77 (1964)).

Consequently, Defendant Kinder is entitled to summary judgment on Count XVI of the

Amended Complaint.

iii

Defendant Hartford

Plaintiff’s defamation claim against Defendant Hartford relates to a statement made on

February 13, 2015. See Am. Compl. ¶¶ 42-43; Pl.’s Mem. 39. Hartford’s complete statement, as

quoted in the Westerly Sun on February 15, 2015, says:

“Being subject to these kinds of hurtful and false allegations is an

unfortunate hazard of serving in the public eye. I can certainly take

it but the hurt it causes to my family and my friends is hard to undo.

Clearly Liz Burdick was under a lot of pressure and had a lot of

anger about the whole Copar thing. It was a very contentious and

trying issue for all involved. I am comfortable with the decisions I

37

made when I was town manager both as to the Copar matter and Liz

Burdick’s employment.” (Ex. S 105.)

Defendant Hartford contends that this statement, when read in context, is “Hartford’s opinion

regarding Burdick’s personal attack and her reasons therefor,” and opinion which is “greatly

supported by Burdick’s own deposition testimony.” (Def. Hartford’s Mem. 51.) Hartford further

argues that these statements were protected by a qualified privilege and a constitutional privilege.

Id. at 51-52. Lastly, Defendant Hartford argues that there is an “absence of any indicia of malice.”

Id. at 52.

Here, Hartford is defending himself against Plaintiff’s personal accusations that he was

unfaithful to his wife with another employee. See Ex. S at 105-108. His assertions that Plaintiff

was “under a lot of pressure” and angry are supported by the record, including Plaintiff’s own

deposition and emails. See Def. Hartford’s Mem. 51; Ex. DD 263, 295. Regarding Hartford’s

characterization of her allegations against him as “hurtful and false,” this Court finds compelling

Hartford’s argument that his statement was privileged because “it was reasonable for him to

believe that he had the legal, moral, and social duty to speak out to protect . . . the interests of his

family and the integrity of the Town’s administration.” (Def. Hartford’s Mem. 52.) Furthermore,

none of Hartford’s statements rise to the level of “‘imputing conduct which injuriously affects

[Plaintiff’s] reputation, or which tends to degrade [her] in society or bring [her] into public hatred

and contempt.’” Burke, 55 A.3d at 218 (quoting Reid v. Providence Journal Co., 20 R.I. 120, 124-

25, 37 A. 637, 638 (1897)). Because this Court finds his statements subject to qualified privilege

and finds no evidence of common-law malice, they are not defamatory. Belliveau, 504 A.2d at

1363. Consequently, Defendant Hartford is entitled to summary judgment as to Count XIV of the

Amended Complaint.

38

2

Private Facts and False Light Invasion of Privacy

In Counts I, V, VII, IX, XI, XIII, and XV of the Amended Complaint, Plaintiff brings

claims for invasion of privacy and false light against the Town Defendants, Hartford, Buck, and

Kinder. According to Plaintiff, “[i]f the Defendants were truthful with publications and acted in

good faith regarding the Plaintiff . . . then liability should be imposed under [9-1-28.1(a)(3)]” for

publications of private facts but if “the publications regarding the Plaintiff were false, as the

Plaintiff argues, then liability should be imposed under [9-1-28.1(a)(4)] as a result of placing the

Plaintiff in a false light”; Plaintiff argues that the this question should be left to the trier of fact.

(Pl.’s Mem. 56-57.)

a

Publication of Private Facts Pursuant to 9-1-28.1(a)(3)

The Town Defendants assert that there is no genuine issue of material fact as to whether

the Town Defendants published private facts. (Town Defs.’ Reply Mem. 16.) Similarly,

Defendants Hartford and Buck argue that Plaintiff has failed to set forth sufficient facts

demonstrating that she may establish a claim under § 9-1-28.1(a)(3). (Def. Hartford’s Mem. 24-

26; Def. Buck’s Am. Mem. 39.) In response, Plaintiff argues that “there is a general issue of

material fact as to whether a reasonable person would find the publications objectionable.” (Pl.’s

Mem. 58.)

Section 9-1-28.1 creates the right to privacy and causes of action for publication of private

facts and false light.14 Pursuant to § 9-1-28.1(a)(3), individuals have “[t]he right to be secure from

14 Section 9-1-28.1 provides, in pertinent part:

39

unreasonable publicity given to one’s private life.” Establishing a claim under this section requires

Plaintiff to prove that, “(A) [t]here has been some publication of a private fact; [and] (B) [t]he fact

which has been made public must be one which would be offensive or objectionable to a reasonable

man of ordinary sensibilities.” Id. In Rhode Island, alleging publication of a “private fact” requires

a plaintiff to “demonstrate that they actually expected a disclosed fact to remain private, and that

society would recognize this expectation of privacy as reasonable and be willing to respect it.”

Swerdlick, 721 A.2d at 858.

Plaintiff alleges that four disclosures by the Defendants constituted publications of private

facts. First, Plaintiff alleges that the March 23, 2013 Hartford disclosure of details regarding the

Separation Agreement constituted publication of a private fact. (Am. Compl. ¶ 68.) However,

“Right to privacy—Action for deprivation of right.—(a) Right to

privacy created. It is the policy of this state that every person in this

state shall have a right to privacy which shall be defined to include

any of the following rights individually:

. . .

“(3) The right to be secure from unreasonable publicity given to

one’s private life;

“(i) In order to recover for violation of this right, it must be

established that:

“(A) There has been some publication of a private fact;

“(B) The fact which has been made public must be one which would

be offensive or objectionable to a reasonable man of ordinary

sensibilities;

“(ii) The fact which has been disclosed need not be of any benefit to

the discloser of the fact.

“(4) The right to be secure from publicity that reasonably places

another in a false light before the public;

“(i) In order to recover for violation of this right, it must be

established that:

“(A) There has been some publication of a false or fictitious fact

which implies an association which does not exist;

“(B) The association which has been published or implied would be

objectionable to the ordinary reasonable man under the

circumstances[.]”

40

Plaintiff cannot have had any reasonable expectation of privacy because, by law, “[s]ettlement

agreements of any legal claims against a governmental entity shall be deemed public records.” See

G.L. 1956 § 38-2-14 (Access to Public Records). The Rhode Island Supreme Court has said that

“it is clear that the statutory right to privacy in Rhode Island does not extend to those records

deemed public.” Doe v. Edward A. Sherman Publishing Co., 593 A.2d 457, 459 (R.I. 1991).

Second, Plaintiff alleges that Mr. Ritacco’s March 23, 2013 statement implies a prior

disclosure of private facts by another employee of the Town. (Am. Compl. ¶ 71.) Yet, any implied

prior statement by an employee of the Town to Ritacco regarding this matter was privileged, given

their mutual employment by the Town and corresponding reciprocity of duty. See Mills, 837 A.2d

at 720 (finding a “qualified privilege also may exist when the parties communicating share a

common interest” and have a “reciprocity of duty”).

Third, Plaintiff charges the Town with the March 24, 2013 Copar email disclosure. (Am.

Compl. ¶¶ 72-73.) However, Plaintiff provided no evidence to link the disclosure to the Town. See

Ex. DD 394-96 (Burdick’s Deposition, including testimony of other possible sources for leaks of

emails and admission that she has no evidence linking Town to email leak).

Fourth, regarding the March 11, 2015 disclosure of the Kerbel report, Plaintiff alleges that

the report contained “false, fictitious, and/or private and confidential information.” (Am. Compl.

¶¶ 89-90; Ex. W 117.) However, as with the Copar emails, Plaintiff has provided no evidence to

link the disclosure to the Town. See Ex. W 117 (“A report summarizing [Kerbel’s] findings was

obtained by The Sun from a source who was promised anonymity. The town has so far refused to

release the report publicly.”). Furthermore, Plaintiff acknowledges in her Amended Complaint that

Defendant Kinder refused to release the report when the Westerly Sun requested a copy under the

APRA on March 24, 2015. (Am. Compl. ¶ 65.)

41

Plaintiff additionally points to the same statements made by Defendants that form the bases

for her defamation claims. See Pl.’s Mem. 58-61. As the Town Defendants argue, the majority of

these statements were made in response to media inquiries relating to existing public information,

as evidenced by their publication in The Westerly Sun. See Town Defs.’ Reply Mem. 16-17;

Swerdlick, 721 A.2d at 859 (quoting Restatement (Second) of Torts § 652D cmt. b (1977) (Oct.

2020 Update)) (“‘There is no liability [for publication of private facts] when the defendant merely

gives further publicity to information about the plaintiff that is already public.’”) Furthermore,

Plaintiff has not demonstrated that there is a genuine issue of fact that any of these statements

would be found to be objectionable to a reasonable person. For these reasons, Plaintiff’s claims

under 9-1-28.1(a)(3) fail.

b

False Light Claims Pursuant to § 9-1-28.1(a)(4)

As to Plaintiff’s false light claims, the Town Defendants echo their arguments brought

against Plaintiff’s claims for defamation. (Town Defs.’ Mem. 11.) More specifically, the Town

Defendants argue that Plaintiff’s six proffered statements attributed to the Town Defendants

cannot form the basis for false light claims and that Plaintiff cannot demonstrate actual malice. Id.

Defendants Buck and Hartford similarly argue that Plaintiff cannot demonstrate that the claims

attributed to her by Plaintiff were “false or fictitious” and that Plaintiff cannot show actual malice.

(Def. Buck’s Reply Mem. 10; Def. Hartford’s Mem. 36-40.)

Under § 9-1-28.1(a)(4), individuals have “[t]he right to be secure from publicity that

reasonably places another in a false light before the public.” In order to establish a claim under

this section, the Plaintiff must prove that, “(A) [t]here has been some publication of a false or

fictitious fact which implies an association which does not exist; [and] (B) [t]he association which

42

has been published or implied would be objectionable to the ordinary reasonable man under the

circumstances[.]” Id. When alleging publication of a “false or fictitious fact,” a plaintiff must show

that the published fact was false and that it “implies an association which does not exist” and

“would be objectionable to the ordinary reasonable man under the circumstances.” Swerdlick, 721

A.2d at 861. A false-light action differs from a defamation claim because it “requires that a plaintiff

be ‘given unreasonable and highly objectionable publicity that attributes to him characteristics,

conduct or beliefs that are false, and so is placed before the public in a false position.’” Id. (quoting

Restatement (Second) of Torts, § 652E, cmt. b at 395 (1977)). As with defamation, a public official

or public figure alleging a false light claim is required to prove actual malice, and the question of

whether a given statement portrays an individual in a false light under § 9-1-28.1(a)(4) is a matter

of law to be determined by the court. Cullen, 809 A.2d at 1112.

In the Amended Complaint, Plaintiff alleges eleven statements made by Town employees

or agents placed her in a false light. As a preliminary matter, Defendant Hartford’s February 13,

2015 statement is not attributable to the Town, as he was no longer Town Manager. (Ex. S 105;

Am. Compl. ¶¶ 77-78.) Additionally, the March 12, 2015 publication of the Kerbel report can no

more be linked to the Town under a theory of false light than under publication of private facts.

(Ex. W 117; Am. Compl. ¶¶ 89-90.) Finally, Defendant Serra’s March 14, 2015 statement was not

found to adequately reference Plaintiff. See Ex. W1 121; Am. Compl. ¶¶ 91-92; supra Section

III.B.1.

With those statements excepted, the alleged false light statements are identical to those also

alleged to be defamatory. The first four of the remaining eight statements were either found by this

Court to be true or to be privileged and made without malice. Mr. Ritacco’s March 23, 2013

statement and the Town Council’s March 29, 2013 statement, both relying on the Kerbel report,

43

were found to be true. See Ex. M 94; Ex. P 100; Am. Compl. ¶¶ 69-71, 74-76; supra Section

III.B.1. The gist of Defendant Serra’s February 13, 2015 statement, quoted in the Westerly Sun,

that “[Burdick and Hartford] were both let go” was found to be substantially true when read in

context. See Ex. S 106; Am. Compl. ¶¶ 79-80; supra Section III.B.1. Finally, Defendant Duhamel’s

request for a State Police investigation into Lombardo’s allegations was privileged and made in

good faith. See Ex. T 109; Am. Compl. ¶¶ 81-82; supra Section III.B.1. As a result, the

investigation request no more “implies an [objectionable] association” or “attributes to [her]

characteristics, conduct or beliefs that are false” than it accuses her of the crime. Cullen, 809 A.2d

at 1112.

The final four alleged false light statements were found to be opinion when analyzed by

this Court for defamatory meaning. In Cullen, cited supra, the Rhode Island Supreme Court held

that “the same protections afforded opinions in a defamation claim also apply in the context of a

false-light claim.” Cullen, 809 A.2d at 1112. Therefore, this Court’s finding that Defendant Buck’s

March 5, 2015 email and the relevant implied statements by Defendant Kinder were nonfrivolous

legal opinions applies here as well, as those opinions “allow[ ] a reasonable reader to realize that

he is being exposed to the declarant’s opinion rather than an accounting of actual fact.” Dep. Ex.

NN 828; Am. Compl. ¶¶ 83-86; supra Section III.B.1; Cullen, 809 A.2d at 1112. Duhamel’s

March 10, 2015 statement asserting that he was unaware that Burdick’s claims were made under

the RIWPA and that she made her claims about Town officials after she was accused of working

for Copar, was also found to be opinion or made without actual malice. See Ex. V 115; Am. Compl.

¶¶ 87-88; supra Section III.B.1. Finally, Kinder’s March 16, 2015 statements were either legal

opinions or made in reasonable reliance on information conveyed to him by others. See Ex. L 86;

Am. Compl. ¶¶ 93-94; supra Section III.B.1.

44

The final alleged false light statement was Defendant Hartford’s February 13, 2015

statement, as quoted in the Westerly Sun on February 15, 2015. See Ex. S 105. As recognized

above, Hartford was no longer Town Manager when he made this statement and was defending

himself against Plaintiff’s personal accusations that he was unfaithful to his wife with another

Town employee. Id. Because this Court found Hartford’s statements subject to qualified privilege

(and absent evidence of common-law malice), they can no more sustain a false light claim than a

claim for defamation. Belliveau, 504 A.2d at 1363; cf. Hustler Magazine, Inc. v. Falwell, 485 U.S.

46, 56 (1988).

Consequently, for the same reasons discussed supra, Plaintiff’s false light claims must fail

as a matter of law because Defendants’ statements were either true, opinion, not about Plaintiff, or

not made with actual malice. See supra Section III.B.1. Therefore, Plaintiff has failed to allege a

conceivable set of facts demonstrating that the Defendants published “a false or fictitious fact” so

as to be entitled to relief on her false light claim. See § 9-1-28.1(a)(4).

As Plaintiff has not demonstrated a material issue of fact with respect to her privacy claims,

summary judgment may enter in favor of Defendants on Counts I, V, VII, IX, XI, XIII, and XV.

C

Negligence

In her Amended Complaint, the Plaintiff alleges that the Town was negligent toward her

through various acts under three main theories: that it failed to adopt a municipal policy or

otherwise adequately protect whistleblowers; that it improperly managed the investigation into

Plaintiff’s claims; and that it failed to adequately supervise and train its employees. (Am. Compl.

22-23, ¶¶ 95-98.) The Town Defendants first note that several of the claimed negligence acts were

released under the Separation Agreement. (Town Defs.’ Mem. 24-25.) The Town Defendants

45

further claim that Plaintiff has failed to establish a legally cognizable duty owed to her by the

Town under any of her theories, let alone a breach. Id. at 23-29. Burdick insists that the

complained-of acts were at least breaches of the Town’s duties as an employer to exercise

reasonable care in supervising its employees, and that there is a genuine issue of material fact as

to whether the Town breached those duties. (Pl.’s Mem. 63-65.) The Town Defendants contend

that the statutes cited by Burdick do not prove the existence of a duty, that she presented no

evidence establishing causation, and that she is making an argument for negligence per se that

Rhode Island courts have long rejected. (Town Defs.’ Reply Mem. 17-18.)

“It is well-settled jurisprudence that ‘to prevail on a claim of negligence a plaintiff must

establish a legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty,

proximate causation between the conduct and the resulting injury, and the actual loss or damage.’”

Dent v. PRRC, Inc., 184 A.3d 649, 653 (R.I. 2018) (quoting Habershaw v. Michaels Stores, Inc.,

42 A.3d 1273, 1276 (R.I. 2012) (further citations omitted)). Moreover, “‘plaintiffs must show a

breach of some duty owed them in their individual capacities and not merely a breach of some

obligation owed the general public.’” Barratt v. Burlingham, 492 A.2d 1219, 1222 (R.I. 1985)

(quoting Ryan v. State, Department of Transportation, 420 A.2d 841, 843 (R.I. 1980). The

existence or nonexistence of a duty is a question of law to be determined by the Court. Rivers v.

Poisson, 761 A.2d 232, 236 (R.I. 2000) (citing Banks v. Bowen’s Landing Corp., 522 A.2d 1222,

1224 (R.I. 1987)).

1

Unattributable or Released Claims

To the extent that Plaintiff had any valid negligence claims based on conduct by the Town

or its employees or agents while she was employed as ZEO, this Court has found, supra, that such

46

claims for “tortious acts” were released when Burdick signed the Separation Agreement on

February 22, 2013. Am. Compl. ¶¶ 22-23, 25-27, 95(b, c, d, e, f, i); see supra Section III.A; Dep.

Ex. G 461, ¶ 5(a).

For example, Plaintiff claims that she suffered harms and losses as a result of the Town’s

negligence “a. In failing to adopt a whistleblower policy to ensure that employees are protected

from retaliation; . . . [and] i. In failing to protect employees who raise allegations of unethical

and/or illegal conduct on the part of the Defendant, Westerly.” (Am. Compl. 22-23.) The second

claim seems to be articulating a statutory duty under the RIWPA. See § 28-50-3 (RIWPA,

Protection) (“An employer shall not discharge, threaten, or otherwise discriminate against an

employee . . . [b]ecause the employee reports . . . a violation, which the employee knows or

reasonably believes has occurred or is about to occur, of a law or regulation.”). To the extent that

is the case, Plaintiff’s remedy would be available under that statute. See § 28-50-4. However, as

explained herein, Plaintiff released her claims under the RIWPA when she signed the Separation

Agreement. See supra Section III.A. Furthermore, even if Plaintiff had not released these claims

under the Separation Agreement, a municipality has no affirmative duty to an individual to enact

policy. See Barratt, 492 A.2d at 1221 (“[P]laintiffs must show a breach of some duty owed them

in their individual capacities and not merely a breach of some obligation owed the general

public.”). As a result, this Court finds no applicable, cognizable legal duty to support Plaintiff’s

negligence claims under this theory.

Second, Plaintiff claims that she suffered harms and losses as a result of the Town’s

negligence “b. [and c.] In allowing the Defendant[s], Hartford [and Buck], to control and manage

the investigation into the Plaintiff’s allegations; . . . [and] f. In failing to adequately investigate the

allegations of the Plaintiff, Burdick.” (Am. Compl. 22-23.) Each of these claims seems to be either

47

articulating a statutory duty under the RIWPA or a breach of the employer’s duty to exercise

ordinary care in supervising or hiring employees. See Welsh Manufacturing, Division of Textron,

Inc. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984). Furthermore, these claims relate to actions

based on conduct during her employment with the Town, and as such, Plaintiff released the claims

when she signed the Separation Agreement.

2

Plaintiff’s Remaining Negligence Theories

Plaintiff claims that she suffered harms and losses due to the Town’s negligence

“d. In failing to instruct its agents, servants and/or employees about

the prohibition against the release of personal and confidential

information relating to employees; e. In allowing its agents,

servants, and/or employees to make false and fictitious statements

about the Plaintiff; . . . g. In failing to adequately supervise its

agents, servants, and/or employees; [and] h. In failing to verify

‘facts’ as it related to the employment of the Plaintiff, Burdick,

before releasing said ‘facts’ to various news outlets and/or

disclosing the same at a public meeting.” (Am. Compl. 22-23.)

Plaintiff argues that the Rhode Island Supreme Court has recognized a cause of action against an

employer for negligent supervision, and further, that the Town’s duty to Plaintiff derives from

statutes and the Separation Agreement. (Pl.’s Mem. 64.)

Plaintiff cites to Welsh Manufacturing, Division of Textron, Inc. and Rivers, cited supra,

and Hall v. City of Newport, 138 A.3d 814, 819 (R.I. 2016), for “the existence of a cause of action

against an employer for negligent supervision.” See Welsh, 474 A.2d at 438 (recognizing “the

direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or

unsuitable employees”). Yet Plaintiff has failed to show that this duty applies to her, because she

has not established an injury that would make her a “third [party] [ ] injured by acts of unfit,

incompetent[] employees.” Id.; see Barratt, 492 A.2d at 1221 (“[P]laintiffs must show a breach of

48

some duty owed them in their individual capacities and not merely a breach of some obligation

owed the general public.”). Furthermore, absent an identifiable tortfeasor for whom the Town has

a duty of supervision under the relevant case law, this Court knows of no general duty to secure

employment documents with a remedy sounding in negligence and declines to create such a duty.

See Banks, 522 A.2d at 1225-27; see also Rivers, 761 A.2d at 235.

The statutory bases cited by Plaintiff for the Town’s duty to supervise its employees are

“R.I. Gen. Laws § 38-2-2(4)(A)(I)(b), § 28-6.4-1(c)(4).” (Pl.’s Mem. 64-65.) First, Plaintiff has

raised the APRA exception for “[p]ersonnel and other personal individually identifiable records

otherwise deemed confidential by federal or state law or regulation, or the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et

seq.” Section 38-2-2(4)(A)(I)(b). It is true that one of the stated purposes of the APRA is “to protect

from disclosure information about particular individuals maintained in the files of public bodies

when disclosure would constitute an unwarranted invasion of personal privacy.” Section 38-2-1.

However, the Rhode Island Supreme Court made clear that this section does not establish a

“reverse remedy” when it decided In re New England Gas Company, 842 A.2d 545, 552 (R.I.

2004). New England Gas Co., 842 A.2d at 551 (“T]he APRA provides neither a right to prevent

the release of private information. . . nor a remedy to compel nondisclosure.”). Consequently, this

statute cannot support Plaintiff’s negligence theory.

The second statute Plaintiff cites to is the exception to the safe harbor for the disclosure of

personnel records or information under § 28-6.4-1(c)(4). The exception cited by Plaintiff makes

the presumption of good faith and immunity from civil liability for such a disclosure “rebuttable

upon a showing by a preponderance of the evidence that the information disclosed was: . . . (4)

Violative of the current or former employee’s civil rights under the employment discrimination

49

laws in effect at the time of the disclosure.” Section 28-6.4-1(c)(4). However, Plaintiff has not

brought an action under the statute, instead alleging negligence. Violation of a statute may be

evidence of negligence, but does not constitute negligence per se. See Clements v. Tashjoin, 92

R.I. 308, 314, 168 A.2d 472, 474 (1961) (“[I]f the duty imposed by the statute was for the safety

of the public, violation of it would be prima facie evidence of negligence but not negligence per

se.”); Maldonado v. Jorge, No. PC 02-5468, 2008 WL 5261965, at *1 (R.I. Super. Dec. 5, 2008)

(“For over 50 years, our Supreme Court has recognized the admission of a violation of a statute as

evidence of negligence”) (emphasis added). Furthermore, Plaintiff has not offered evidence that

the Town in fact violated the statute she cites, by violating her civil rights under the employment

discrimination laws. Section 28-6.4-1(c)(4). The disclosures complained of in this action have all

been found to be either public records or not traceable to agents or employees of the Town. See

supra Section III.B.2.i. Consequently, this statute also cannot support Plaintiff’s negligence

theory.

Finally, Plaintiff argues there are contractual bases for the Town’s duty to instruct and

supervise its employees in the Separation Agreement. See Pl.’s Mem. 64-65. The Court finds two

paragraphs relevant. First, a subparagraph of the Waiver and Release section states that “[t]he

Town will instruct its management personnel, including Human Resources personnel and Ms.

Burdick’s supervisors, that all requests for job references are to be referred to the Town Manager[,

who] will respond with only Ms. Burdick’s dates of employment and position held.” (Dep. Ex. G

462, ¶ 5(g).) This Court would have to read the Town’s duty under this paragraph very broadly to

find a duty of employee supervision relative to Plaintiff’s employment documents extending

beyond the clearly defined circumstances of a request for a job reference. The Court declines to

do so. The only other portion of the Separation Agreement that could plausibly be read to create

50

such a duty is the first sentence under the Confidentiality section, which states that “[y]ou

acknowledge and agree that your employment with the Town created a relationship of confidence

and trust between you and the Town with respect to all Confidential Information.” (Dep. Ex. G

463, ¶ 8.) Yet any effort to read this sentence as establishing a reciprocal duty of confidentiality is

undermined when it is read in the context of the rest of that section,15 which is concerned solely

with establishing Plaintiff’s duty not to disclose Confidential Information (a defined contractual

term meaning “information belonging to the Town, which is of value to the Town and the

disclosure of which would be contrary to the Town’s interests”). Id.

15 Section 8 of the Separation Agreement provides that:

“Confidentiality. You acknowledge and agree that your employment

with the Town created a relationship of confidence and trust

between you and the Town with respect to all Confidential

Information. You warrant and agree that (a) you have not used or

disclosed any Confidential Information other than as necessary in

the ordinary course of performing your duties as an employee of the

Town, and (b) you will keep in confidence and trust all Confidential

Information known to you, and will not use or disclose such

Confidential Information without the prior written consent of the

Town. Nothing in this Letter Agreement is intended to or shall

preclude you from providing truthful testimony or providing truthful

information in response to a valid subpoena, court order or request

of any federal, state or local regulatory, quasi-regulatory or self-

governing authority, provided, to the extent permitted by law, you

have provided to the Town as much advance notice as practicable of

any such compelled disclosure. As used in this Agreement,

‘Confidential Information’ means information belonging to the

Town, which is of value to the Town and the disclosure of which

would be contrary to the Town’s interests. Examples of Confidential

Information are, non-public documents, personnel files, matters

discussed in lawfully closed sessions of public bodies where the

records of same have been sealed, and any and all other matters

lawfully kept confidential by the Town pursuant to Rhode Island’s

Open Meetings Act and/or Access to Public Records Act.” (Dep.

Ex. G 463.)

51

This Court finds no applicable, cognizable legal duty to support any of Plaintiff’s

negligence claims, rendering summary judgment appropriate in favor of the Town Defendants as

to Count IV.

D

Civil Conspiracy

Plaintiff makes two civil conspiracy allegations in her Amended Complaint. (Am. Compl.

34-39.) Defendants contend that Plaintiff has shown no assent among the alleged parties to the

conspiracies. (Town Defs.’ Mem. 31-32; Def. Buck’s Mem. 59-61; Def. Kinder’s Mem. 15-16;

Def. Hartford’s Mem. 60-64.) Defendants further claim that Plaintiff has failed to establish an

underlying intentional tort theory. (Town Defs.’ Mem. 32; Def. Buck’s Mem. 59-60, 62-68; Def.

Kinder’s Mem. 15-16; Def. Hartford’s Mem. 60-64.) Burdick insists that there are genuine issues

of material fact as to whether the two groups of alleged conspirators in fact conspired to defame

her and invade her privacy rights. (Pl.’s Mem. 65-69.) The Town Defendants reply that Plaintiff’s

allegations amount to “bootstrapped propositions and begging the question.” (Town Defs.’ Reply

Mem. 18-20.)

“A civil conspiracy claim requires the specific intent to do something illegal or tortious.”

Guilbeault v. R.J. Reynolds Tobacco Co., 84 F. Supp. 2d 263, 268 (D.R.I. 2000). When alleging a

civil conspiracy, the Rhode Island Supreme Court has held that a plaintiff must demonstrate

“evidence of an unlawful enterprise.” Read & Lundy, Inc. v. Washington Trust Co. of Westerly,

840 A.2d 1099, 1102 (R.I. 2004) (internal citation omitted). To do this, Plaintiff must show that

“(1) there was an agreement between two or more parties and (2) the purpose of the agreement

was to accomplish an unlawful objective or to accomplish a lawful objective by unlawful means.”

Smith v. O’Connell, 997 F. Supp. 226, 241 (D.R.I. 1998). Because civil conspiracy is not “an

52

independent basis of liability” but instead “a means for establishing joint liability for other tortious

conduct, . . . it ‘requires a valid underlying intentional tort theory.’” Fogarty v. Palumbo, 163

A.3d 526, 543 (R.I. 2017) (quoting Read & Lundy, Inc., 840 A.2d at 1102). Here, Plaintiff has

failed to state a valid underlying intentional tort theory upon which to base her civil conspiracy

charges. Plaintiff’s allegations under Counts XVII and XVIII reference retaliation, defamation,

and invasion of privacy. (Am. Compl. 36, ¶ 108; Am. Compl. 38-39, ¶ 105.) However, this Court

has found that Plaintiff’s retaliation claims under the RIWPA were released under the Separation

Agreement. See supra Section III.A. Furthermore, this Court has not found any of the statements

placed at issue herein to be defamatory. See supra Section III.B.1. Finally, none of the disclosures

or statements Plaintiff objected to as invasions of privacy have been found to be either “private

facts” or “false or fictitious facts.” See supra Section III.B.2. Without a valid underlying

intentional tort theory, Plaintiff’s conspiracy charges fail as a matter of law, and summary

judgment on those counts of her Amended Complaint is therefore appropriate as to Counts XVII

and XVIII.

E

Qualified Immunity

The Town Defendants last argue that Defendants Duhamel, Douglas, and Serra are entitled

to qualified immunity from liability from civil damages. (Town Defs.’ Mem. 30-31.) Because the

Court has determined that summary judgment is appropriate on all counts, the Court need not

address the applicability of qualified immunity in this matter.

53

IV

Conclusion

Plaintiff has failed to establish that there remains any genuine issue of material fact as to

her charges of retaliation under the RIWPA, defamation, invasion of privacy, negligence, or civil

conspiracy. As such, the Court grants Defendants’ Motions for Summary Judgment as to Counts

I-XVIII of the Plaintiff’s Amended Complaint. Counsel shall submit the appropriate judgment for

entry.

54

RHODE ISLAND SUPERIOR COURT

Decision Addendum Sheet

Elizabeth Burdick v. Town of Westerly, et al.

WC-2016-0043

Washington County Superior Court

January 15, 2021

Taft-Carter, J.

Gregory P. Massad, Esq.

Matthew T. Oliverio, Esq.; Kelly M. Fracassa, Esq.; Deidre

E. Carreno, Esq.; William J. Conley, Jr., Esq.; Cark W.

Yudysky, Esq.; Thomas M. Robinson, Esq.

TITLE OF CASE:

CASE NO:

COURT:

DATE DECISION FILED:

JUSTICE/MAGISTRATE:

ATTORNEYS:

For Plaintiff:

For Defendant: