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October 14, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Evelyn E.C. Queen, Trial Judge)

Before Steadman, Farrell, and Wagner, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge : Philip C. Baten sued Howard University for firing him without just cause, in alleged breach of their employment contract. *fn1 A jury found for Baten and awarded him $286,333 in damages. Howard appeals, arguing (1) that its motion for judgment notwithstanding the verdict should have been granted, and (2) that the jury was improperly permitted to award Eaten damages for mental anguish arising from the breach of contract. We hold that the evidence was sufficient to sustain the jury's Conclusion that Eaten was fired without just cause, but that the jury instruction permitting damages for mental anguish was improper and may have tainted the damage award. We therefore affirm as to liability for the breach of contract, but remand for a new trial on damages alone. We reject Baten's cross-appeal asserting that the claims of intentional infliction of emotional distress and intentional interference with contract were improperly withheld from the jury.


Baten was hired by Howard University in 1973. Eventually he rose to the position of supervisor of the wage and salary administration unit of the office of personnel administration. His employment contract, by incorporation of Howard's employee handbook, provided that he could be fired only for just cause. One basis for cause was conduct incompatible with the welfare of the university, which included acts of insubordination. On September 27, 1982, Baten's supervisor, Arthur E. Newman, informed him by letter that he had been terminated on this ground. Specifically, the letter asserted that Baten, who had completed law school and been admitted to the District of Columbia Bar while employed by Howard, had "continued to use office at the university to conduct both law practice and real estate ventures in spite of [Newman's] repeated warnings to beginning in mid February, 1982."

Baten's complaint alleged wrongful discharge because he claimed he had not transgressed these warnings (i.e., committed insubordination) nor engaged in law-related activities in a manner prohibited by the warnings or by university policy. At trial Baten did not dispute that he performed some legal activity -- unrelated to his university job -- using his office facilities. Issue was thus joined on the scope of the prohibition that had been conveyed to him by the university (through Newman) and whether he disobeyed that prohibition.

Newman testified that in February and March 1982, on more than one occasion, he told Baten of information received by Dr. Nichols, Newman's supervisor, that Baten had been "practicing law out of his office." According to Newman, Baten did not deny these allegations and promised to "cease and desist." By September 1982, however, Newman was still receiving reports of Baten's law-related activities using his office, so on September 24 Newman and his administrative assistant searched Baten's office. Both testified that, while they found no materials in the office related to Baten's duties as a university employee, they found numerous legal materials. Among these were law books, case files, a telephone log of calls from clients, a legal newsletter prepared by Baten, a billing program prepared on his university computer, and stationery with a letterhead bearing his name. One of Baten's subordinates, Charles Fearing, testified that Baten made no secret of his law practice, telling "the whole office that he [had been] doing certain . . . lawyer jobs[] for a long time. Once he . . . passed the bar . . . he . . . did not make it a secret that he was doing something in the office, and what he was doing was trying to get his cases together." Fearing even complained to Newman that he "was getting sick and tired of the phone calls all day long which assumed that this was Mr. Baten's law office." It was uncontested that Baten paid his secretary one hundred dollars to type a complaint and interrogatories for a lawsuit he brought personally against First Virginia Bank while employed at Howard.

There was, in sum, substantial evidence from which the jury could have found that Baten, despite warnings to desist, used his office to practice law when he should have been performing his job as a Howard University supervisor. But there was contrary evidence as well. Baten testified that the only warnings he received from Newman were that "people in personnel were doing outside work in their offices on university time, and that if that is occurring, it is to stop . . . ." Baten denied that he had done more than occasional legal work from his university office, and contended he had done this on his own time -- consistent with Newman's explanation to him that such use of university facilities was permitted "as long as it was . . . not on university time." Indeed, according to Baten, when he showed Newman the sort of desultory legal matters he worked on in his office during lunchtime or after hours, Newman replied, "I don't see anything wrong with that."

Although Baten admitted he prepared his billing program (which he set up in anticipation of losing his Howard job through a reduction in force) and letters related to his legal services on his office word processor, he insisted that he performed these activities after hours. He explained the telephone logs as a record of phone calls made by persons interested in his legal services to a K Street office which received these calls for him; he would call the office during lunch hour to obtain a list of callers. Essentially the only law books in his office were left over from his law school attendance while he was employed by Howard. He asserted that he had worked on his lawsuit against the Virginia bank strictly on his own time; and that he had paid his secretary personally for assisting him with it.

Newman and Dr. Nichols provided partial corroboration for Baten's testimony. Each confirmed that university policy allowed employees to do at least some non-job related work at the university on their own time. When asked whether it was all right for Baten "to use the word processor before work hours or after work hours to type a newsletter or to do something related to the practice of law," Newman stated that it was, so long "as he didn't interfere with the university work that was being done on . . . that machine." On the other hand, when asked whether "under university policy . . . employees undertake a whole new enterprise, such as the practice of law, using Howard University facilities" (emphasis added), even on their own time, Newman replied that they could not.

As submitted to the jury, therefore, the case presented conflicting testimony about the amount of law-related activity Eaten had carried on using his university office, and whether he had disobeyed warnings repeatedly conveyed to him. Howard contends that Newman repeatedly told Baten to stop "practicing law" from his campus office; *fn2 that Baten did not deny that activity and ignored the warnings; and that, in any event, the evidence was compelling that he converted his workplace into a de facto law office. But Baten disputed each of these aspects of Howard's explanation for firing him, contending that his legal work had been incidental -- nothing like the "whole new enterprise" to which Newman referred -- and had been done on his own time, and that nothing in university policy as communicated to him by Newman barred that activity.

On this record, we simply are unable to hold that the issue of whether Baten was fired with justifiable cause should have been taken from the jury. As we have often said, a judgment notwithstanding the verdict "is proper only in 'extreme' cases, in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party." Law v. Howard Univ., Inc., 558 A.2d 355, 355 (D.C. 1989) (quoting Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C. 1986), cert. denied, 493 U.S. 1074, 110 S. Ct. 1121, 107 L. Ed. 2d 1028 (1990)). This court's task (like that of the trial Judge in ruling on a motion for judgment NOV) is not to substitute its own inferences for those the jury could rationally draw from the evidence, or to assess the reliability of the evidence save in the rare case where testimony is "inherently incredible," Baltimore v. B.F. Goodrich Co., 490 A.2d 642, 644 (D.C. 1985), something we cannot say of Baten's account of his conduct and the warnings given him. "Courts must leave for the factfinder's assessment a great variety of dubious factual claims." Alley v. Dodge Hotel, 179 U.S. App. D.C. 256, 261, 551 F.2d 442, 447, cert. denied, 431 U.S. 958, 97 S. Ct. 2684, 53 L. Ed. 2d 277 (1977). Baten's denial that he was practicing law on university time may be one of them, but the trial Judge correctly refused to set aside the jury's finding of liability.


Over the objection of Howard's counsel, the trial Judge instructed the jury that in deciding what damages to award, it could consider any "mental anguish" Baten suffered as a result of the breach of his employment contract. *fn3 ...

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