Hon. William S. Thompson, Trial Judge
Ferren, Associate Judge. Belson,* Associate Judge, Retired. Dissenting opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Ferren
On Petition For Rehearing
Appellant Patricia Thompson, an employee of the Northeast branch of the District of Columbia Public Library, sued the District and her supervisor, Alfred Maury, for intentional infliction of emotional distress, defamation, and assault and battery. On February 12, 1990, this division of the court held, in Part II of our opinion, that Thompson's claims against the District presented a "substantial question" whether all her alleged injuries -- mental and emotional, as well as physical -- were covered under the disability compensation provisions of the District's Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-624.2 to -624.46 (1987). District of Columbia v. Thompson, 570 A.2d 277, 287, 288 (D.C. 1990). These CMPA sections contain an exclusivity provision, D.C. Code § 1-624.16(c), see (infra) note 16, which, if applicable, would preclude Thompson's common law claims against the District. We concluded that if the disability provisions did cover these claims, Thompson could seek compensation from the District only through an administrative proceeding before the Department of Employment Services (DOES). Id. at 288. We therefore remanded to the trial court with directions to stay the proceeding against the District of Columbia until Thompson had had a reasonable time to test the reach of CMPA by filing with DOES for disability benefits. Id. at 288, 300-301.
In Part III of the opinion we considered the District's alternative argument. We held that, in possible contrast with CMPA's disability provisions, CMPA's comprehensive personnel evaluation provisions -- more specifically, those in Subchapter 15 governing employee "performance ratings", D.C. Code §§ 1-615.1 to -615.5 (1987), and those in Subchapter 17 covering "adverse actions" and "grievances," id. §§ 1-617.1 to -617.3 -- did not preempt Thompson's right to bring common law tort actions against the District and Maury. Thompson, 570 A.2d at 289. Nor did these CMPA provisions require exhaustion of administrative remedies. Id. Therefore, had we not decided to stay the proceeding against the District because of possible preemption by the CMPA disability provisions, we would have found no other CMPA bar to reaching the merits of the common law claims against the District. Furthermore, because we perceived no CMPA bar against Thompson's suit against Maury, id. at 288 & n.7, we reached the merits on those claims. In doing so, we dismissed the claim for intentional infliction of emotional distress (Part IV), id. at 219, 300, and reversed and remanded for a new trial the claims for defamation (Part V), id. at 291-298, 301, and for assault and battery (Part VI), id. at 298-300, 301. We recognized, moreover, that if DOES were to rule that Thompson's claims against the District were not governed by CMPA's disability provisions, our rulings on defamation and assault and battery applicable to Maury would be available to Thompson in renewed trial court proceedings seeking derivative liability against the District. Id. at 288, 301.
After issuance of our first opinion and order, the District and Maury petitioned for rehearing. *fn1 We granted the petition, without vacating our opinion and order, primarily to give further consideration to Part III (and, consequently, to Parts IV, V, and VI) of that opinion. Accordingly, we have focused once again on the District's alternative argument under CMPA: that the comprehensive statutory provisions covering employee "performance ratings" (Subchapter 15) and "adverse actions" and "grievances" (Subchapter 17) provide exclusive remedies for employee claims arising out of the kinds of employer activities -- performance evaluation and discipline -- identified in those subchapters. In short, we reconsider whether those CMPA provisions preempt, and thus preclude court action against the District and Maury on, Thompson's claims of defamation and of intentional infliction of emotional distress arising out of the employment relationship. *fn2 We are now persuaded by the preemption argument. Accordingly, while we reaffirm several parts of our earlier opinion -- the introduction (except for the last two, Dispositional sentences), Part I (facts and proceedings), Part II (CMPA disability provisions), and Part VII (reassignment to different trial Judge) -- we vacate Parts III, IV, V, *fn3 and VIII (summary of Disposition) and modify Part VI to delete reference to the defamation claim.
A jury awarded Thompson damages of $530 for assault and battery, $35,000 for defamation, $42,500 for intentional infliction of emotional distress, and $280,000 for loss of wages or diminished earning capacity attributable either to the defamation or to the intentional infliction of emotional distress. Thompson, 570 A.2d at 280. Thompson's defamation and emotional distress claims are based on twenty-two memoranda that her supervisor, appellant Maury, had written during Thompson's two-year employment beginning in May 1981 as a library technician at the Northeast branch of the District's Public Library. As we noted in our earlier opinion:
These memoranda, beginning in June 1981, repeatedly advised and warned 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.
Id. at 281. Thompson's emotional distress claim also rests on the following actions:
approved her leave and then changed her status to absence without leave; he refused to consider her for promotion to the next grade level or to give her the computer test she asked for; he isolated her from the other employees; he requested statements from her doctor as to her limited hours; he wrote memoranda on her excessive leave; and he assaulted her and lied about it, resulting in her job loss. *fn4
Before addressing Maury's memoranda and other alleged tortious conduct, we believe it would be helpful to outline the statutory scheme that, according to the District, provides the exclusive route to resolving Thompson's claims. CMPA establishes a merit personnel system that, among other things, provides for (1) employee "performance ratings," including "corrective actions" when necessary; (2) employee discipline through "adverse action" proceedings; and (3) prompt handling of employee "grievances." See D.C. Code §§ 1-615.1 to -615.5 and 1-617.1 to -617.3. As a general rule, whether a public employee defends a corrective or adverse action by the employer, or initiates a grievance proceeding against the employer, the matter will be resolved either under detailed CMPA procedures or under a CMPA-sanctioned collective bargaining agreement between the employing agency and a public employees' labor union -- but not both. See id. §§ 1-615.3(c), -615.4(d), -617.3(d).
More specifically, subchapter 15 of CMPA, D.C. Code §§ 1-615.1 to -615.5, requires the Mayor, "after negotiation with appropriate labor organizations," to establish a "performance-rating plan" for evaluating all covered personnel. Id. § 1-615.1. The plan, at a minimum, must provide for annual performance ratings "used to improve employee performance." Id. § 1-615.2. Employees shall be rated according to at least a five-level scale from "outstanding" to "unsatisfactory;" "may be rated unsatisfactory only after a 90-day advance warning period;" and may be removed only by the "adverse action" procedures outlined in Subchapter 17 of CMPA, D.C. Code §§ 1-617.1 to -617.3, "unless otherwise provided by a negotiated contract" with a public employees labor union. Id. § 1-615.3.
An employee may obtain an impartial review of a performance rating by the board of review within his or her own particular agency, subject to further review by the Office of Employee Appeals (OEA), id. §§ 1-606.3 (a), -615.4, and by the Superior Court. Id. § 1-606.3 (d). Employees covered by a collective bargaining agreement, however, may be subject to performance rating plans and review procedures that differ from those provided under CMPA itself. See id. §§ 1-615.4 (d), -615.5. *fn5
In Subchapter 17, CMPA establishes procedures for processing employee "grievances." *fn6 Id. § 1-617.2. "The grievance system shall provide for the expeditious adjustment of grievances and complaints and the prompt taking of appropriate corrective action when the complaint or grievance is, upon review, found to be justified." Id. Subchapter 17 also governs "adverse actions," such as removal for cause. Id. §§ 1-617.1, -617.3. When confronted by an adverse action, an employee is entitled to receive a written copy of the charges, to have time to file a written answer, and to receive a decision "within 45 calendar days of the date that charges are preferred." Id. § 1-617.3(a)(1)(D).
The employee may appeal any adverse action or decision on an employee-initiated grievance to OEA, with the right of judicial review in Superior Court. Id. § § 1-606.3(a) and (d), -606.4(e), -617.3(b); see Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985) (affirming Superior Court reversal of OEA's order reinstating electrical foreman at juvenile correctional institution). However, as in the case of performance rating review, "any system of grievance resolution or review of adverse actions negotiated between the District and a labor organization shall take precedence over" Subchapter 17 procedures, including OEA review. D.C. Code § 1-617.3(d). *fn7
If an employee grievance goes to arbitration pursuant to a collective bargaining agreement, the union and the employee may appeal the arbitration award to the Public Employee Relations Board (PERB), subject to judicial review in Superior Court. Id. §§ 1-605.2 (6) and (12). Employees dissatisfied with their union's representation may appeal to PERB, and then seek judicial review in Superior Court, if they have a basis for alleging improper conduct. See id. §§ 1-605.2(3), -605.2(9), -605.2(12); Hawkins v. Hall, 537 A.2d 571, 574 (D.C. 1988) (Board of Education employees who claimed Board and union unlawfully withheld union dues from their wages required to exhaust administrative remedies at PERB before seeking judicial relief); Fraternal Order of Police v. Public Employee Relations Bd., 516 A.2d 501, 504 (D.C. 1986) (upholding trial court order affirming PERB decision that union improperly rescinded agreement to pay member's outside counsel fees).
Thompson was a member of the Public Library employees' exclusive bargaining agent, The American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). Although her claims for defamation and emotional distress, therefore, must be tested by reference to the Library's contract with AFSCME, the applicable principles of preemption -- of exclusiveness of remedy -- are the same whether an employee's rights and obligations are governed by a collective bargaining agreement or by the provisions of CMPA itself. We say this because CMPA and a CMPA-sanctioned union contract are alternative governing documents generally covering the same scope of employer-employee rights and duties. We therefore consider, next, how the CMPA scheme and Thompson's claims intersect. We discuss not only how the union contract applies but also how the CMPA provisions themselves would apply (absent a union contract) to the kinds of complaints Thompson has made.
The District argues, on rehearing, that some of Maury's memoranda can be characterized as "letters of direction," see Thompson, 570 A.2d at 282-283, "letters of warning," see id., and "written reprimands" permitted as "corrective actions" by the collective bargaining agreement between the District's Public Library and AFSCME. *fn8 We agree. Similarly, some of these memoranda come within the provisions of CMPA itself authorizing each agency to use "corrective measures" such as "reprimands." *fn9
We also agree with the District that other Maury memoranda appear to be directed at more serious forms of discipline under CMPA, such as discharge for an unsatisfactory "performance rating," see id. at 283-84, or for "cause" defined, for example, as "incompetency" or "inexcusable neglect of duty," or "insubordination." *fn10 These memoranda, similarly, could serve as the basis for a disciplinary action under the Library-AFSCME contract. *fn11
The District adds -- and again we agree -- that Thompson was not limited to defending herself from corrective or disciplinary actions based on the Maury memoranda; she was entitled to initiate grievance proceedings under CMPA, see (supra) notes 6 and 7, or under the Library-AFSCME contract. *fn12 A grievance would include many, if not all, of the items that caused Thompson distress: for example, the denial of leave, the allegedly inaccurate letters of warning, and the charges of excessive leave-taking. See (supra) note 6.
Although Thompson had many opportunities to challenge what she perceived as unfair treatment, she filed grievances -- through her union -- on only two occasions. In May 1982, Thompson used the Library-AFSCME grievance procedure to seek additional computer training and an upgrade in job classification. After a meeting with Thompson and her AFSCME representative, Maury submitted a memorandum to AFSCMF denying Thompson's grievance. Thompson elected not to process the grievance beyond this first step. *fn13
Thompson also sought to use her collective bargaining right to challenge her proposed termination. *fn14 On August 2, 1983, AFSCMF processed a grievance for Thompson through three of the four steps specified in the collective bargaining agreement. See (supra) note 13. A hearing was held on September 8, and a decision was issued on September 15 upholding her termination. AFSCME declined to take the grievance to step four, arbitration, and Thompson took no further appeals. *fn15
In sum, a public employee such as Thompson has comprehensive rights to notice, hearing, appeal, and judicial review of performance ratings and adverse personnel actions under CMPA and under any CMPA-endorsed union contract. Moreover, both CMPA and a union contract afford the employee rights to file grievances against the governmental employer for any matter "which impairs or adversely affects" the employee's "interest, concern, or welfare." D.C. Code § 1-603.1 (10); (supra) note 6. The employee also has rights against the union for inadequate representation. See (supra) Part I .B.; note 15. The District argues that all of Thompson's complaints except the one for assault and battery were cognizable under CMPA Subchapters 15 and 17 or under the Library-AFSCME ...