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September 25, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge

Belson, Steadman, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

This is a consolidated appeal arising from a jury verdict in favor of Bessie A. Stockard on claims of slander and breach of contract against defendants Orby Z. Moss, Jr., the Athletic Director of the University of the District of Columbia, the Board of Trustees of the University of the District of Columbia (UDC), and the District of Columbia (the District). Moss, UDC, and the District appeal from the trial Judge's refusal to grant in their entirety their motions for a directed verdict on the slander and breach of contract causes of action. With respect to the slander claim, they argue that Stockard failed to establish the falsity of Moss's statements to others that Stockard's contract as head coach of the UDC women's basketball team had not been renewed because of "misappropriation" of funds entrusted to her. They also contend that Moss, as a public official, enjoyed an absolute privilege to make those statements or, in the alternative, had a qualified privilege which Stockard failed to defeat with the requisite showing that Moss made the statements maliciously. They further assert that Stockard, as a public official or public figure, was required to -- but did not -- demonstrate by clear and convincing evidence that Moss had made the statements with "actual malice" within the meaning of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Regarding the breach of contract claim, they assert that no coaching contract between UDC and Stockard existed for the 1981-82 basketball season, and that even if Moss's promise to renew the previous year's contract was enforceable, his decision not to do so was within his discretion in light of Stockard's behavior.

On her cross-appeal, Stockard challenges the trial Judge's remittitur of the jury's verdict on the slander claim from $300,000 to $100,000, contending the Judge invaded the jury's province by disturbing its findings on matters committed to jury discretion.

We conclude that whether Moss's statements were subject to absolute immunity turns upon whether his conduct was a "discretionary" function as defined in our decision in District of Columbia v. Thompson, 570 A.2d 277 (D.C. 1990). Because the present record precludes an informed analysis of the policy factors necessary to resolve that question (Thompson having been decided after the trial in this case), we remand the case to the trial Judge for consideration of the issue in light of Thompson and this opinion. To avoid duplicative appellate litigation in the event the trial Judge concludes absolute immunity does not attach, we reach the remaining issues as well and dispose of them as set forth below.


A. Factual Background

In 1978, Bessie Stockard was a tenured Associate Professor in the Physical Education Department of UDC. Previously, she had acquired considerable experience as a women's basketball coach, having organized the women's basketball team at Federal City College, the predecessor of UDC, and served as coach for the United States World and American University women's basketball teams. In April 1979 Moss, Director of Athletics, offered to appoint Stockard head coach of the new women's basketball team at UDC, and Stockard accepted. The contract term was for one year *fn1 beginning June 1, 1979, renewable at Moss's discretion. Since Stockard believed, and Moss agreed, that it was impossible to develop a competitive basketball program in one year, they discussed a four or five year time frame. Accordingly, Moss's offer letter noted, "Beginning with the 1980-81 season, the position will hopefully come out of the appropriate budget," and he agreed to work "to set up special contracts for multi-year appointments" to ensure continuity in the program.

In 1980, acknowledging the success of Stockard's coaching and the team, *fn2 Moss offered to renew Stockard's contract. In deference to her desire to resume her former status as a full-time tenured professor of physical education, Moss offered the coaching position on a part-time basis with compensation at $9,000 for the coming year. In the renewal offer letter dated April 28, 1980, Moss sought to allay Stockard's concern over the brevity of the appointment, assuring her that "if you continue to meet the goals we jointly decide on each year, barring unforeseen circumstances or circumstances not under our control, you will be rehired." Stockard accepted the offer. Following the 1980-81 season, Moss again wrote Stockard a letter reviewing the progress she and the team had made, and continuing:

At the end of the 1982-83 season, I feel that we should, you, Ms. Best [Assistant Director of Athletics for Women's Sports] and I will be able to establish whether the program is progressing the way it should and if these goals are being met. This time frame will have then given you four (4) years to develop your program, along your philosophy tempered by my direction, and Ms. Best's administrative support.

In Conclusion, I feel that you are on your way, maybe even ahead of schedule in the area of winning and losing, to establishing a good program. You have until 1983 to put all the pieces into place, academically as well as athletically.

At trial, Moss testified that when he wrote this letter he had already received authorization to renew Stockard's contract and intended to rehire her for the 1981-82 season.

Nevertheless, on March 25, 1981, Moss orally informed Stockard that her contract would not be renewed. The termination resulted from Moss's dissatisfaction with her handling of and accounting for university funds disbursed to cover meal and other expenses during a three-day team trip to Atlanta for two "away" games in December 1980.

Stockard had obtained a cash advance of $1,150.00 for the trip from Curtis Watkins, the Athletic Department Business Manager. *fn3 At the end of the season, she submitted a report to Watkins with receipts indicating that of the $1,150 received for the Atlanta trip, she had paid $145.65 for a team dinner on December 19, which Moss attended; $39.00 for a breakfast for twelve people on December 20; and $800 consisting of $40.00 in cash she had distributed to each of the twenty players as meal money for breakfast, lunch, dinner and a snack for each of the three days they were away. She submitted a "meal money signature sheet" bearing the signatures of each player who received the $40.00. *fn4 She had also paid $252 for an airline ticket for a player who decided to attend the trip at the last minute, *fn5 and had paid for incidentals such as oranges, ice and taxi fares.

Stockard testified that in mid-March, after Watkins had submitted the receipts and trip report to Moss, Moss called her in for a meeting and asked her if she had any more receipts. When she replied that she did not, Moss stated, "Curtis says these are not all the receipts," and asked her to take them back, look them over, and "fix" them. She insisted that the receipts submitted were all there were, and left them with Moss. Moss testified that after reviewing the receipts, he and Best spoke with several persons who had attended the Atlanta trip. Questions arose when Best informed him that one player told her she had only received $21.00 in meal money. Moss also testified Stockard had submitted a receipt from Paschal's Motor Hotel in Atlanta indicating that a credit balance of $53.34 had been reduced to zero by a payment in cash, when in fact lodging for the team at Paschal's had been prepaid by the university.

Moss directed Stockard to meet with Best to straighten out the receipts, including the meal money and motel bill. Stockard resubmitted her report which was still unsatisfactory to Moss; he testified that the $40 meal money distributions to the players exceeded Departmental guidelines and violated AIAW rules limiting meal money distributions to participating team members. *fn6 When Moss and Best met with Stockard again, she told them that she "stood by" the receipts. On March 25, 1981, Moss again met with Stockard and told her she was either misrepresenting her trip reports or giving her players too much money. When Stockard refused to change her position, Moss told her that her contract would not be renewed.

The next day, Stockard wrote to Moss stating:

Based on our two conversations, the first with you, Mrs. Best, and myself; and the second conversation with you and myself on March 25, 1981 regarding meal money for the women's basketball team, I was not given orally or in writing during my entire tenure with the Athletic Department, under your administration, any direction as to how much money the team should be given per meal, per day, or per trip. I received all monies, in cash, from our business manager, Mr. Curtis Watkins. I did not request any money from him for meals, nor did I sign or okay any requesting vouchers.

Stockard testified that she did not plan specific allowances for each player, but that Curtis Watkins anticipated the total amount the team would need on road trips, prepared a requisition, and distributed the money to the coaches in cash. *fn7 She testified that she knew from previous experience as a coach that players were to receive $5.00 for breakfast, $5.00 for lunch, and $7.50 for dinner, but that UDC had provided no information on specific limitations on meal allowances. *fn8 She did not regard meals that players did not eat -- including the in-flight snacks or the dinners at Paschal's (which many found "inedible") -- as counting against the per diem meal allowance. Her position, in essence, was that her distribution of $40.00 for a three-day trip did not substantially violate the departmental $13.25 per day meal allowance policy ($13.25 X 3 = $39.75). *fn9 Acknowledging that she had submitted the receipt for lodging at Paschal's, she asserted that she did not do so to claim the expenses against the amount disbursed to her, and that she was unaware of the $54.00 credit reduced to zero that the receipt showed.

Following Stockard's March 25 meeting with Moss, she informed her assistant coach, Steven Haynes, that she had been fired. The news spread quickly through the university community, and members of the team came to Stockard to ask her the reason why. She told them to "o ask Mr. Moss." On March 25, Theresa Snead and Alice Butler, co-captains of the team, went to Moss for an explanation of the reasons for Stockard's discharge. Snead testified that Moss told them Stockard had been fired for "misappropriation of funds," and that her understanding of the statement was that "it was just like he was saying she had been stealing." Snead testified that when Moss asked her how much meal money she had received in Atlanta, she told him, the "normal amount . . . $40; $5.00 for breakfast, $5.00 for lunch and $7.50 for dinner."

On the same day, Moss summoned assistant coach Haynes and, according to Haynes, told him that "he had brought me in to make it official to me that he was firing Ms. Stockard for misappropriation of funds. And he wanted me to look at this Atlanta meal sheet to see if I agreed with the signature that was on it. . . . And the meal slip that he showed me looked okay. So I told him that I agreed with it."

Shortly after Stockard was discharged, a team meeting was held which Moss attended. Stockard was present but left before the meeting was over. According to team member Louise Spriggs, Moss stated that "they had decided to let go because it was a misappropriation of funds." Student assistant basketball coach Leroy West, also present at the meeting, stated that Moss had said "Ms. Stockard mishandled money in the budget." Moss and Best, by contrast, testified that Moss had never told anyone Stockard has misappropriated funds.

B. Proceedings Below

Stockard filed the instant suit in March 1982, naming as defendants Moss, Best, the Board of Trustees of UDC, and the District. The complaint sought compensatory and punitive damages, alleging breach of contract, libel and slander, tortious interference with contract, intentional infliction of emotional distress and sex discrimination. *fn10 The case was tried to a jury in April and May 1986.

At the close of the plaintiff's case, the defendants moved for a directed verdict on all counts. Judge Shuker granted the motion in part, disposing of all claims against Best, the interference with contract claims, and the intentional infliction of emotional distress count. As to the libel, slander and breach of contract counts, he was unable to say that the motions were without merit in light of the evidence so far, and took them under advisement.

At the close of all the evidence, the defendants renewed their motions for directed verdict. Ruling from the bench, the Judge granted the motions with respect to the libel claims. *fn11 He also refused to allow the claim for punitive damages to go to the jury. While continuing to take the motions on the slander and breach of contract counts under advisement, the Judge ruled that on the facts of this case Stockard was a private figure, and that the New York Times standard therefore did not apply. He submitted the slander and breach of contract counts to the jury under instructions to which no party objected.

On May 6, 1986, the jury returned a verdict in Stockard's favor, awarding her $18,000 for breach of contract and $300,000 for slander. The defendants filed post-trial motions, seeking, among other relief, a remittitur, and the Judge disposed of all pending motions in a detailed Memorandum Opinion and Order on May 11. He rejected the contention that Moss was immune from civil liability for his statements under an absolute privilege for public officials acting in their official capacity. Finding persuasive the reasoning of Stukuls v. State, 42 N.Y.2d 272, 397 N.Y.S.2d 740, 366 N.E.2d 829 (1977), he concluded that the policy reasons for absolute immunity did not compel extension of the privilege to lesser "officials" such as Moss. He accepted the argument, however, that Moss's statements fell within a qualified privilege for communications which the person making the statement has an interest in making, or a duty (or the honest belief that he has a duty) to make, to another person having a corresponding interest or duty. Recognizing that this privilege was defeasible only on a showing of malice, he concluded there was sufficient evidence at trial from which the jury could find Moss had made the statements without adequately investigating whether the asserted misappropriation was true, and that this constituted recklessness enough to overcome the qualified privilege.

Regarding the breach of contract claim, the Judge found that the defendants were estopped from denying the existence of a contract for the 1981-82 season, but that the evidence was insufficient for the jury to find a contract for the 1982-83 season. Accordingly, he remitted the contract damages awarded by the jury from $18,000 ($9,000 x 2 seasons) to $9,000. In response to the defendants' argument that the settlement agreement in Stockard's Human Rights Act claim had awarded her back pay for the 1981-82 and 1982-83 seasons, and that to permit any breach of contract verdict would allow a double recovery of the same damages, the Judge cited the last paragraph of the settlement agreement providing that the settlement would "in no way affect" the pending civil action, and sustained the damages.

Finally, the Judge ruled that "unless plaintiff accepts a remittitur, reducing the award for slander to $100,000, defendant shall be entitled to a new trial [on the issue of damages for slander only]." He found

the award to be outrageous and unreasonable and, consequently, . . . that the jury must have been improperly motivated. Giving the plaintiff the benefit of every legitimate inference, and viewing the evidence in a light most favorable to her, the Court can only conclude that this award exceeded at least by a factor of three the very outer limits of reasonableness. [Emphasis by the court.]

Stockard accepted the remittitur, preserving her right to appeal the Judge's ruling.

II. Absolute Privilege

Appellants contend that Moss's communication of the reason for Stockard's discharge to the team members and others, even if false and defamatory, was shielded by the absolute privilege recognized in Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1959). Stockard counters that absolute immunity under Barr should be reserved for District of Columbia officials occupying only the highest echelons of the executive branch, or at least only those exercising delegated or redelegated governmental duties directly emanating from those levels in the official hierarchy. She relies, as did the trial Judge, on the reasoning of the New York Court of Appeals in Stukuls v. State, supra, in which the court rejected a claim of absolute immunity asserted by a state university vice-president for academic affairs as a complete defense to a defamation suit by a discharged member of the faculty arising from statements made during a tenure committee meeting. The court in Stukuls first acknowledged the trend among federal courts toward broadening official immunity that had culminated in the decision in Barr. It then noted that very few state carts had extended absolute immunity this far, but rather had reserved absolute immunity for only the highest officials and accorded lesser officials qualified immunity. The court concluded:

nless an official is a principal executive of a State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension, policy considerations do not require that he be given an absolute license to defame. The privilege exists to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and financial hazards that may accompany such suits for damages by the victims of even malicious libels or slander.

42 N.Y.2d at , 366 N.E.2d at 833.

The reasoning of the Stukuls court has substantial merit, but we conclude that to link the scope of immunity to the status of the official within the executive hierarchy would be inconsistent with the analysis we recently adopted in District of Columbia v. Thompson, supra. In our judgment the Thompson approach will ensure, just as effectively as Stukuls' test, that the ...

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