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02/12/90 DISTRICT COLUMBIA AND ALFRED MAURY v.

February 12, 1990

DISTRICT OF COLUMBIA AND ALFRED MAURY, APPELLANTS
v.
PATRICIA JOAN THOMPSON, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. William S. Thompson, Trial Judge.

Rehearing En Banc Denied October 2, 1990,

Before Ferren, Belson, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: This case arose out of an employment dispute between appellee, Patricia Thompson, who was a library technician in the Northeast branch of the District of Columbia Public Library, and her supervisor, appellant Alfred Maury. Effective August 5, 1983, Thompson was fired. Thompson's notice of proposed discharge stated the reason as "Discourteous Treatment of your Supervisor," referring to an incident on May 25 in which Maury and Thompson each claimed an assault by the other. The notice described Thompson's assault of Maury, as well as other instances in which Maury had corrected Thompson's behavior and Thompson had responded in a "hostile, discourteous manner" with threats and name calling. In response to losing her job, Thompson filed suit against Maury and the District of Columbia. In her complaint, she described her version of the incident on May 25 and claimed Maury's actions constituted assault and battery and false imprisonment. Thompson also claimed that, because Maury's statements giving his version of the incident were false, his statements were defamatory. Thompson further alleged that Maury's "multivalent tortious actions" constituted intentional infliction of emotional distress. Thompson sued the District under the doctrine of respondeat superior. *fn1 Maury counterclaimed for assault and battery.

While Thompson's complaint appeared to be limited to the events surrounding the May 25 incident, the facts developed at trial were much more far-reaching. Thompson put into evidence her entire career with the library, both to show that she had been a satisfactory employee before her transfer to Northeast and to show Maury's treatment of her at Northeast. Thompson, for example, put into evidence twenty-two memoranda Maury had written about her. Thompson's attorney then argued to the jury that Maury had acted on a mission to have Thompson dismissed from the library, that Maury's entire pattern of behavior for two years had constituted intentional infliction of emotional distress, and that Maury had slandered and libeled Thompson for two years.

The jury found for Thompson on all counts, except on her claim of false imprisonment, and against Maury on his counterclaim. The jury awarded Thompson damaged (excluding loss of wages and benefits) of $530 for the assault, $35,000 for defamation, and $42,500 for intentional infliction of emotional distress. The jury also awarded Thompson $280,000 for her loss of wages or diminished earning capacity attributable either to the defamation or to the intentional infliction of emotional distress.

Maury and the District filed this appeal, arguing primarily that (1) Thompson's claims were covered by the disability compensation provisions of the Comprehensive Merit Personnel Act, D.C. Code § 1-624.1 to -624.46 (1987), and, therefore, that Thompson was required to submit them initially to the District of Columbia Department of Employment Services (DOES), which had primary jurisdiction; (2) Thompson had otherwise impermissibly attempted to litigate her discharge, which was limited to an administrative remedy or, at least, to exhaustion of administrative remedies; (3) Maury's actions did not constitute intentional infliction of emotional distress as a matter of law; (4) with respect to the alleged defamation, Maury was absolutely privileged to make the statements about Thompson; and (5) as to the claims for assault and battery and defamation, the trial Judge erred in excluding evidence of Thompson's prior assaults and threats, as well as evidence of Maury's good character. We agree with Maury's and the District's first, third, and fifth claims of error. Accordingly, we must reverse and remand.

I.

Patricia Thompson began working in the main branch of the District of Columbia Public Library on a part-time basis in 1973. In 1978, she was promoted one grade level and began working full time. In 1979, she was transferred to the Wilkinson branch and then to the Chevy Chase branch. In July 1980, she was transferred to the Benning branch. While at Benning, on January 26, 1981, Thompson underwent cataract surgery on her right eye. She was out for ten weeks. On her return, in March, her doctor wrote a, note stating that Thompson could return to work from 1:00 p.m. to 7:00 p.m. for the next four weeks. On April 26, her doctor wrote another note, again recommending the same limited hours. In May 1981, Thompson was transferred to the Northeast branch, where Maury began supervising her.

The parties differ sharply over Thompson's record at the Library before and after her transfer to the Northeast branch. Thompson characterized her tenure with the Library as satisfactory until she arrived at the Northeast branch. Thompson noted, for example, that she regularly received in-grade step increases, which are automatic raises the employee receives on her anniversary date if the supervisor approves. In addition, Thompson was promoted once and, because of her supervisor's recommendations, began working more hours and finally full time. Thompson also characterized her performance evaluations as satisfactory.

In contrast, the District and Maury put on evidence showing that Thompson had not had a wholly satisfactory relationship with the Library before her transfer to Northeast. Thompson had previously complained about her supervisors and about problems with employees at the other branches. Her supervisor at the Benning branch testified that she had had periods of difficulty supervising Thompson because Thompson had had difficulties dealing with her co-workers and the public. Thompson had lost her temper with members of the public and had had arguments in which she swore at her co-workers. In addition, Thompson took a lot of leave time. Usually Thompson took sick leave, but sometimes Thompson would anticipate leaving and yet not let her supervisor know that she was planning to take leave. Thompson received one poor review while at Benning that she refused to sign. When her supervisor gave her the review, Thompson became angry, used profanity, and knocked the contents of the top of her own desk to the floor.

The main dispute at trial concerned Thompson's tenure at the Northeast branch. Thompson put in evidence twenty-two memoranda that Maury had written about Thompson during her two years at Northeast. These memoranda, beginning in June 1981, repeatedly advised and warned her to follow the correct leave request procedures and notified her of problems in the performance of her duties, including conflicts with a summer employee, inaccuracy in putting information into the computer, and insubordination and rudeness to staff and patrons. Thompson claimed that all these memoranda were false, that they defamed her, and that, by writing the memoranda and harassing her, Maury intentionally had inflicted emotional distress. Thompson testified that some of the memoranda blamed her for not doing tasks when she either had been told not to do them or had been asked to do other work. Thompson also testified that some of the memoranda either mischaracterized her disputes with Maury or were absolutely false. She felt some of the other memoranda were excessively critical, and she said they contained complaints that Maury had not told her in person.

At trial, Maury defended the accuracy of these memoranda. Maury testified that during Thompson's two years at the Northeast branch he had had two to four problems per week with her. Maury stated that he had discussed the problems in person with Thompson and tried to learn her side each time. He said he finally had started writing memoranda because he was required to do so as a supervisor. These memoranda, contemplated by the union contract, were either "letters of warning," meant to correct the employee, or "letters of direction," more strongly worded corrections. Maury testified that he did not document all the problems with Thompson in these memoranda.

Althea Neal, Thompson's direct supervisor at the Northeast branch, supported Maury's testimony. She stated that problems with Thompson had begun shortly after her arrival. Thompson kept repeating mistakes in entering information into the computer and cursed Neal whenever Neal called the mistakes to Thompson's attention. According to Neal, Thompson also took excessive leave, as much as four days per week, without requesting it in advance. Neal received complaints from library patrons about Thompson, and Thompson did not get along with her co-workers.

The incidents underlying some of the memoranda were discussed extensively at trial. The first memorandum referred to a meeting Maury had called in response to complaints by other staff members. Maury, Neal, Thompson, and Ernest Dixon (another library employee) met to discuss problems in the allocation of library tasks. According to Maury's testimony, during the course of the meeting Thompson began verbally abusing Neal, calling her a liar and other names. As a result of this meeting, Maury recommended that Thompson be transferred or dismissed, a recommendation that did not result in any personnel action. Thompson also testified about the meeting, denying that she had refused to do work or that she had come back late from breaks and lunch. She admitted calling Neal a liar but denied calling hex other names. Thompson further testified that the meeting had ended when she told Maury that he was crew conflicts among the employees and that, as far as she was concerned, the meeting was over.

Thompson became eligible for a within-grade step increase in August 1981. While Maury recommended the increase, he also wrote a memorandum to the personnel department that Thompson's performance was barely satisfactory and that further documentation would show Thompson was "certifiably unsatisfactory." Thompson testified that she had never received a copy of this additional memorandum and that Maury was supposed to have shown her the recommendation.

A continuing source of controversy was Thompson's leave-taking. During her time at the Northeast branch, Thompson continued to work limited hours because of her eye condition. The reduction in her working hours counted as sick leave. Thompson testified that Maury had told her he could give her annual leave on the same day she requested it but that Maury, nonetheless, had written Thompson several memoranda about the need for requesting annual leave in advance to aid scheduling. Thompson also testified that Maury continued to be insensitive to her eye condition. One example of this insensitivity, she said, occurred when Thompson was assigned to work at another branch. She took sick leave because of her eye condition, but Maury reported her as absent without leave. Thompson wrote a memorandum to personnel stating she had called in and requested sick leave for that day. Her request had been granted, and no action was taken against her.

Maury and Neal testified, in contrast, that Thompson's leave-taking made scheduling at the library difficult. Thompson would call and say she was taking time off that day. Maury tried to accommodate Thompson's sick time, approving the leave when she asked for it, but he began writing "letters of direction" when he, himself, received word from his superiors to tighten up on leave time. (Thompson acknowledged on cross-examination that she took eighteen weeks of leave during 1981 and fourteen weeks of leave during 1982 while at Northeast.) Maury further testified that he wrote the memorandum reporting Thompson as absent without leave only after hearing from the supervisor at the other branch that Thompson did not show up or call to ask for leave.

In May 1982, Thompson filed a grievance with the union requesting a computer test to show that she had the necessary skills to be promoted one grade level. In 1981, Thompson had received the Library's standard computer training program, and by mid-1982 she felt her computer skills qualified her to advance. At a grievance hearing on May 11, 1982, Maury testified, as he did later at trial, that he did not think a computer test was appropriate because his branch was short of staff and because Thompson's past behavioral problems meant that an additional test and, if necessary, further training would not help Thompson get promoted. Maury also testified that Thompson became so abusive at the hearing that she had to be removed from the building. After the hearing, according to Maury, Thompson announced that she did not feel well. She took the rest of the day off and the next day off as well. Maury testified that he approved one day of leave but not the second day. On May 12, 1982, Maury wrote a memorandum to personnel explaining that he had decided not to give Thompson a computer test because of her "uncontrollable emotions" and the fact that she was not promotable at that time. He also sent Thompson a "letter of direction" on that date warning her against taking leave without prior permission and disapproving her leave for May 12. He later changed her time off on May 12 to absence without leave.

Thompson, testified at trial that she had felt she was qualified for a grade increase but that Maury had been stalling in approving her promotion. The hearing had made her very upset, she said, and had given her a migraine headache. Contrary to Maury's testimony, Thompson testified that Maury had approved leave for both days and even had said that if she did not have enough leave time, she could take the time without pay.

In September 1982, Thompson filed a complaint with the Equal Employment Opportunity Office requesting computer training. Dorothy Gray, who was the personnel officer assigned to the complaint, suggested that Neal give Thompson some additional training. Maury opposed the request because Neal had been temporarily transferred to another branch and because of other problems, including Thompson's rudeness and abuse of leave-taking.

As part of the regular library procedure required by the union contract, Thompson received annual performance evaluations. Her first performance rating at the Northeast branch in April 1982, for the period covering April 1981 to March 1982, had been mixed, with some checks for "satisfactory" and some minuses for "needs improvement." At the end of December 1982, Maury sent Thompson a "warning of unsatisfactory performance rating." This warning was a notice, required by the union contract, sent at least ninety days before the employee received an unsatisfactory rating which could then become the basis of adverse action. In this warning letter, Maury detailed the reasons for the unsatisfactory rating: problems of rudeness to patrons, inaccuracies in putting information into the computer, refusal to do assigned duties, and inappropriate leave-taking. Thompson sent a memorandum to personnel disputing the unsatisfactory evaluation. She also testified that, although Maury was supposed to help her improve her performance if it needed improvement, he never did so during her two years at the Northeast branch. Maury was unknowledgeable about the computer, she said, and, rather than help her, he wrote memoranda criticizing her. Thompson further testified that Maury also had refused to send her to another branch to improve her skills.

In May 1983, Maury and Thompson had the altercation that led to Thompson's being fired. On May 24, Maury gave Thompson a "letter of warning" about incorrect leave-taking. The next day, Thompson saw Maury as he entered the library. Maury testified that Thompson, who was angry about the letter, confronted him. She shouted at him, called him names, and finally threw a rubber stamp at him. He testified that he left the area and that Thompson followed him to his mezzanine office, shouting at him, blocking the door, and pushing his shoulders back when he tried to pass. Maury denied touching or pushing Thompson on May 25.

Thompson testified that, on May 25, she asked Maury about the "letter of warning" and that he insulted her. She told him to "lay off me" and went to the kitchen. She further testified that he followed her there and blocked the door. Then, said Thompson, after she left, Maury followed her to the mezzanine where he shouted and pointed his finger at her. Thompson testified that when she told Maury to stop harassing her, he pushed her against the wall. According to Thompson, after she left, Maury followed her downstairs and pointed his finger at her again, saying, "There's more where that came from, baby." Thompson testified that, as a result of this incident, she was very upset and had sharp back pains that required her to take two days off and to go to the hospital for treatment.

After the altercation, both Maury and Thompson called Sigrid Washington, Maury's direct supervisor. Maury got through to Washington and recounted Thompson's assault on him. Thompson was unable to get through to Washington but did speak to June Sweeney, Washington's supervisor. Sweeney came to the Northeast branch and discussed the incident with Washington, Maury, and Thompson. As a result of the Discussion, Maury wrote a memorandum to Washington explaining his version of the events and recommending that Thompson be dismissed. Thompson wrote a memorandum to Sweeney explaining her version of the events and threatening to seek professional advice if the library did not "handle the matter." Washington and Sweeney, however, concurred in Maury's recommendation to fire Thompson.

On June 20, 1983, Thompson received her last performance evaluation. It rated her unsatisfactory. Thompson refused to sign it. Thompson testified that she felt deceived, destroyed, and taken advantage of by the report. She testified that, after receiving the report, she went to a psychiatrist because she had trouble coping with the assault and the rating. Thompson filed an objection to her unsatisfactory performance evaluation and requested an impartial review. Later in June 1983, Sweeney acted as the impartial reviewer. Sweeney asked Thompson specific questions about her job duties, such as how to operate the computer. Sweeney concluded that Thompson could not adequately perform her job duties and, therefore, that the unsatisfactory rating should stand.

On June 22, 1983, Thompson received a proposed notice of discharge. This letter gave Thompson a thirty-day notice that she would be terminated and explained her appeal rights. The letter stated the reason for termination as "Discourteous Treatment of your Supervisor." The letter described Thompson's assault of Maury, as well as an earlier incident in which Thompson had threatened Maury. The letter also stated that, as to the penalty, Thompson's past record of threats, outbursts, and discourteous behavior had been considered. Thompson testified that she was in shock because the library took Maury's side of the events without getting her version. Thompson grieved this termination through her union, but the termination was upheld.

Thompson testified that after she was fired she had trouble holding another job. She did not work continuously because she had flashbacks of Maury's assault on her and because she cried a lot. When she could not work, she sat around the house, gained weight, drank, and separated herself from friends and family.

At trial, Thompson called Dr. Francis Board, a psychiatrist, to testify as to the Ongoing mental effects she suffered. He testified that Thompson suffered from a "major affective disorder." While he opined that she had partially recovered from this disorder by October 1985, he stated that the prospects for Thompson's future recovery were "guarded." Thompson also called Joseph Tryon, an economist, who testified about Thompson's lost income. Tryon compared Thompson's current income, projected over her expected working life, to what he estimated she would have earned in the library system. He then discounted the difference by an interest rate of six percent. In his opinion, her lost income, discounted to its net present value, was $291,453.

The District also put on evidence of Thompson's mental condition. Dr. Thomas Goldman testified that, at the time of her discharge, Thompson suffered from an "adjustment disorder with a mixed disturbance of emotions and conduct." He disagreed with Dr. Board that Thompson suffered from a "major affective disorder." According to Dr. Goldman, Thompson's symptoms were not severe enough to warrant that diagnosis. Dr. Goldman also testified that Thompson's disorder was transient, not permanent, and could be treated effectively.

The trial court denied each side's motion for a directed verdict. The jury returned its verdict for Thompson. The District and Maury filed this timely appeal.

II.

The District contends that Thompson's common law claims against the District are precluded by the exclusivity provision of the disability compensation portion of the Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-624.2 to -624.46 (1987). Section 1-624.16 (c) provides:

The liability of the District of Columbia government . . . under this subchapter . . . with respect to the injury or death of an employee, is exclusive and instead of all other liability of the District of Columbia government . . . to the employee . ...


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