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May 27, 1993

EARL HARPER, JR., Plaintiff,

The opinion of the court was delivered by: LOUIS F. OBERDORFER

 Plaintiff, a former attorney at the Equal Employment Opportunity Commission (EEOC), brings this defamation suit against defendants, Del Walters, a television investigative journalist; WJLA-TV, a local television news station; and Albritton Communications Company. At issue are two televised reports regarding plaintiff's alleged personal misconduct that defendants aired during the Senate Judiciary Committee's confirmation hearings of Supreme Court Justice Clarence Thomas. Because the broadcasts are privileged under District of Columbia law as fair and accurate publications of matters in official reports, and because defendant has introduced no evidence that a jury reasonably could find to be clear and convincing proof of malice, summary judgment is granted for defendants.


 At 6:00 p.m. and 11:00 p.m. on the evening of October 11, 1991, during the Supreme Court confirmation hearings of Clarence Thomas, WJLA-TV aired broadcasts by Del Walters, a reporter with WJLA-TV's investigative reporting unit. *fn1" The substance of the broadcasts was that in 1983, when Clarence Thomas was serving as Chairman of the EEOC, he had failed to act on numerous charges of sexual harassment against plaintiff Harper, who at that time worked as an attorney in the EEOC's Office of General Counsel. An EEOC investigation of Harper's conduct had resulted in two proposals from the EEOC's Office of General Counsel that Harper be transferred, and ultimately that he be fired, for his misconduct. Thomas, however, allowed Harper to retire before any disciplinary action was taken.

 The WJLA-TV broadcasts expressly stated that they were based on the two EEOC proposals and quoted directly from the report of EEOC General Counsel, David Slate. Plaintiff here challenges two specific statements in the broadcasts: first, that Harper had been "charged with sexually harassing thirteen different women," *fn2" and second, that the allegations against Harper had included "statements Harper played with his genitals on two occasions in front of two separate women." Def. Ex. C at 3. The broadcasts displayed portions of the Slate report, highlighting and magnifying the words "masturbating" and "played with your genitalia" in the text. Def. Ex. E (videotape). Following the broadcasts, Senators Howell Heflin of Alabama and Orrin Hatch of Utah both referred to the WJLA-TV report and to Earl Harper in subsequent televised Judiciary Committee proceedings.

 The background events to the 1991 WJLA-TV broadcasts began in August 1983, when the EEOC began disciplinary proceedings against Harper. At that time, Associate General Counsel of the EEOC Michael Middleton determined that while serving at the EEOC headquarters in Washington, D.C. between 1981 and 1983, Harper had sexually harassed or otherwise engaged in improper sexual relationships with thirteen female employees of the agency. Middleton detailed his findings in a formal Notice of Adverse Action on September 22, 1983. Def. Ex. F ("Middleton Notice"). This notice was one of the two Notices of Adverse Action relied upon by WJLA-TV in compiling its October 11, 1991 broadcasts.

 In the Notice, Middleton proposed that Harper be transferred immediately from his then-supervisory position at the EEOC office in Baltimore to a non-supervisory position in the agency's office in Washington, D.C. The Notice specified allegations of 14 female EEOC employees as the basis for the proposal. According to Middleton, each of the women reported either some form of sexual overture from Harper or having been involved in a relationship with him. The Notice cited statements by two female employees (identified by name) that Harper had frequently "rubbed, fondled, or played with" his genitals and appeared to be masturbating in their presence. *fn3" Middleton concluded that standing alone, many of the individual incidents reported would have justified the transfer he proposed. "Taken together however," he concluded,

these incidents comprise a pattern of conduct on your part which has created an intimidating, hostile and offensive working environment characterized by a sexually harassing atmosphere. Such conduct clearly violates the principles of Title VII which prohibit sexual harassment in the workplace.

 Id. at 4.

 The Middleton Notice stated that it was only a proposal and that Harper would have the opportunity to answer the Notice orally and in writing to David Slate, General Counsel of the EEOC. It stated that Harper could request and examine the materials on which the Notice was based and that Harper could furnish affidavits, other documentary evidence, and a written answer to the proposed adverse action within ten days of receipt of the Notice. The Notice stated that any timely reply by Harper would be "fully considered" before a final written decision was made. Id. at 4-5.

 Harper's counsel filed a response to Middleton's Notice on October 20, 1983, and presented oral arguments in a formal hearing on the proposed transfer before General Counsel David Slate and Slate's Senior Advisor. On December 2, 1983, Slate issued a written memorandum to Harper indicating that Harper's transfer had been made final. Chairman Thomas concurred in the transfer in a separate memorandum to Slate of the same date. Def. Ex. G at 20-21; see also Def. Ex. 8, Deposition of Earl Harper, Jr. ("First Harper Dep.") at 84-91.

 On December 2, however, General Counsel Slate also issued a separate Notice of Adverse Action to Harper, which was the second EEOC document relied upon by WJLA-TV. Def. Ex. G ("Slate Notice"). *fn4" The Slate Notice recommended that Harper should not be transferred but instead should be fired from the EEOC. Slate stated that after "careful consideration" of both Harper's written and oral responses to the Middleton Notice and the written file, Slate had "concluded that Mr. Middleton's proposed adverse action was too lenient" and decided to rescind it. Id. at 1. The Slate Notice continued as follows:

This notice of proposed adverse action identifies thirteen different women, currently or formerly employed by the Commission, who at various times were assigned to work under your direct supervision. With one exception, each of these employees personally provided information in the form of affidavits, testimony, or interviews (all of which has already been available for your review) that reveals that during the time you were their supervisor, you either sexually harassed them, had a romantic or sexual relationship with them, or that your conduct resulted in a reputation that made a number of your subordinate female employees wary of possible advances of a sexual nature by you. *fn5"

 Id. at 2-3 (footnotes omitted) (emphasis added). Of the thirteen women, Slate concluded that seven of their claims constituted actual sexual harassment. These included the specifications of the two who alleged that Harper had masturbated or played with his genitals in front of them. Id. at 9. Slate rejected Harper's argument that these allegations did not on their face constitute sexual harassment under the EEOC guidelines. The Slate Notice also recounted the allegations of Patsy Stewart that Harper had engaged in similar behavior before of her. *fn6" Although Harper had challenged the veracity of Stewart's statements, Slate concluded that Harper's responses were "not sufficient" to discredit her allegations, id. at 4, and noted that Stewart's testimony did "not reveal any significant inconsistencies as to the substance of her complaints." Id. at 5.

 Slate stated that the other six women's allegations did not appear to "actually constitute sexual harassment" by Harper. Id. at 3. However, he believed these allegations constituted "evidence of conduct that supports [Harper's] reputation and otherwise tends to support the allegations of conduct" that properly could be considered under the EEOC guidelines. Id. He therefore "included these specifications in [his] deliberations." Id.

 Slate concluded in his Notice to Harper that

the preponderance of credible evidence demonstrates both specific instances and a pattern of conduct by you that had the effect of creating an intimidating, hostile, and offensive working environment for a number of the Commission's female employees during the time they were assigned to work under your direct supervision.

 Id. at 2. Slate found the evidence supported the conclusion that Harper's conduct was "unbecoming of an attorney for this agency and that it constituted an abuse of [Harper's] supervisory authority." Id. at 2. Because Slate was the individual recommending Harper's removal, he indicated he was delegating to Chairman Thomas authority to make the final decision. He also indicated Harper would again have an opportunity to examine the evidence against him and to furnish affidavits and other documentary evidence in support of his reply. He stated a written decision would be issued after Harper's ten days to respond had expired.

 On December 12, 1983, Harper's counsel presented a written response to Slate's Notice. Oral argument was held on December 14, 1983, before Chairman Thomas. Although Thomas apparently concurred in the proposal to terminate Harper, *fn7" Harper resigned before Thomas acted on Slate's proposal. See First Harper Dep. at 63-78, 97-101. An EEOC memorandum to the files dated November 2, 1984, stated that after the December 14, 1983 hearing on Slate's proposed adverse action, Harper was "given the option of retiring as soon as he became eligible or having the Chairman issue his decision on the adverse action. Mr. Harper opted to retire, effective October 31, 1984." Def. Ex. G at 19, Memorandum from Cynthia C. Matthews.

 Harper sued defendant WJLA-TV and its employees on one previous occasion regarding a 1983 broadcast that directly accused Harper of sexual harassment. See Harper v. WJLA-TV Inc., Civ. Action No. 3312-84 (D.C. Super. Ct.) (hereinafter "1986 lawsuit"). The 1983 broadcast was based on a WJLA-TV investigation of a lawsuit filed against Harper by the aforementioned Patsy Stewart. Patsy Stewart v. EEOC, Civ. Action No. 81-1643 (D.C. Super. Ct.). *fn8" The Middleton and Slate Notices relied upon by WJLA-TV in the present case were produced in discovery during the 1986 lawsuit, and the defendants there attempted to introduce the Notices to support the truth of the sexual harassment allegations in the 1983 broadcast. Judge Susan R. Holmes of the Superior Court for the District of Columbia denied the defendants' motion for summary judgment, concluding that Harper's claim raised "some question of actual malice or reckless disregard for the truth." Pl. Ex. A at 11. In her ruling, Judge Holmes determined that defendants could not introduce the Middleton Notice into evidence as an exception to the hearsay rule because the Notice was not "the result of a quasi-judicial proceeding which afforded the plaintiff due process rights" and therefore was "not inherently reliable" for the purposes of the hearsay exception. *fn9" Judge Holmes concluded that the defendants therefore had offered "insufficient support for the defendant's claim of truth" to prevail at the summary judgment stage. Id. at 7. In 1986, however, a District of Columbia jury found for the WJLA-TV defendants in a trial on the truth of the sexual harassment allegations.


 In the present case, plaintiff does not challenge the general allegations of sexual harassment in the October 11, 1991 broadcasts. His challenge is limited to defendant's publication of the terms "masturbating" and "played with his genitals." See Memorandum in support of Plaintiff's Motion in Limine at 1. Specifically, plaintiff argues that the 1991 broadcasts "used the word 'masturbate' in a manner designed to imply, and through innuendo to suggest, that Plaintiff had sometime in the past masturbated in public in the presence of at least 13 females." Complaint P 1. Plaintiff also challenges the truth of Walters' report that Harper had been "charged with sexually harassing thirteen different women." Plaintiff argues the statements were libelous per se and that defendants published the ...

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