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District of Columbia Court of Appeals.

July 30, 1998



Before Schwelb and Reid, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb, Associate Judge:

[715 A2d Page 875]

This case presents us with two related and consolidated appeals. The first, No. 96-CV-34, arises from an action for defamation and wrongful discharge which was brought by Katherine T. Wallace, Ph.D., a former associate of the law firm of Skadden, Arps, Slate, Meagher & Flom, against the firm and several of its partners and associates. The plaintiff alleged, inter alia, that her character and professional qualifications had been defamed by the defendants in a number of performance evaluations and other communications, and that she had subsequently been discharged, in part, in retaliation for her adherence to the Rules of Professional Conduct. The first trial judge dismissed the complaint for failure to state a claim on which relief may be granted, holding that the communications in question were not defamatory; that even if the communications were defamatory, they were absolutely privileged because Ms. Wallace had consented to them; that several of the defamation counts were time-barred; and that the wrongful discharge claim was precluded by the "at-will" employment doctrine. On appeal, the plaintiff challenges all of these rulings.

We hold that the communications of which the plaintiff complains were reasonably susceptible of a defamatory meaning. Accepting as true the allegations of the complaint for purposes of the defendants' motion to dismiss, we conclude that the plaintiff did not consent to at least some of the allegedly defamatory communications, and that these communications were protected by a qualified privilege but not by an absolute one. Because the plaintiff has sufficiently alleged malice, we hold that the complaint was erroneously dismissed. We agree with the trial judge that several of the defamation counts are time-barred, and we affirm the dismissal of the wrongful discharge claim.

Appeal No. 96-CV-739 arises from a second action which was filed by the plaintiff shortly after the dismissal of the first. In the second case, Ms. Wallace, a black married woman, alleged that Skadden, Arps had discriminated against her on account of race and marital status with respect to her employment opportunities, in violation of the [715 A2d Page 876]

District of Columbia Human Rights Act, D.C.Code §§ 1-2501 et seq. (1992). The second trial judge dismissed the complaint on grounds of claim preclusion and because, in his view, the individual partners were not amenable to suit. We conclude that the second complaint must be reinstated.



A. The trial court proceedings.

According to the allegations of her 303-paragraph complaint, the plaintiff is a 1993 graduate of the Georgetown University Law Center. During the summer following her second year at Georgetown, she served as a summer associate with Skadden, Arps. At the conclusion of that summer, the plaintiff was offered a position as an associate with the firm. She subsequently accepted the offer, and she was employed as an associate from 1993 until her discharge in September 1995.

Ms. Wallace's career with Skadden, Arps was a stormy one. She was initially assigned to the International Trade Group and subsequently transferred to the Communications Group. In each of these assignments, the plaintiff became embattled with a number of partners and senior associates who criticized her performance; she, in turn, accused these lawyers of defaming her. The first action arises from the defendants' negative assessments of the plaintiff's work and attitude and from her ultimate dismissal from the firm under less than cordial circumstances.

The essence of the plaintiff's complaint is that she is a superbly qualified *fn1 and highly ethical attorney, and that the defendants, or some of them, "perceived Plaintiff's extensive credentials and expertise to be a professional threat to them." The plaintiff also claims that during her career at Skadden, Arps, she became aware of various "instances of misfeasance and malfeasance, legal malpractice and [unethical conduct]." She alleges that in accordance with her perceived responsibilities under the Rules of Professional Conduct, she brought these improper activities to the attention of her superiors. The plaintiff claims that she was repeatedly defamed and ultimately discharged in retaliation for her reporting of wrongdoing at Skadden, Arps, and, apparently, because some of her superiors were unable to cope with a person of her qualifications.

The complaint in the first case was filed on November 1, 1995. Most, but not all, of the defamatory statements of Which the plaintiff complains are alleged to have been made more than one year before the suit was filed. The plaintiff asserts that prior to November 1, 1994, the defendants falsely and maliciously stated, inter alia,

1. that the plaintiff "played hookie" and had poor and unreliable work habits;

2. that she frequently failed to meet deadlines;

3. that she produced work of "inferior quality," some of which was "not worth reading";

4. that she was unwilling to work on weekends or to devote sufficient time and energy to her assignments, and that she used her children as an excuse for poor performance;

5. that her billings were low, compared with those of other associates; *fn2

6. that she had an "attitude problem" and behaved in an unruly manner; and [715 A2d Page 877]

7. that, as an excuse for one of her absences from the office, she falsely claimed that the ceiling of her home had fallen.

With respect to the period after November 1, 1994, the complaint alleges that the defendants falsely and maliciously represented that the plaintiff was frequently out of the office during office hours. According to the plaintiff, the defendants further defamed her by stating that one client was so displeased with the poor quality of the plaintiff's work that a representative of the client had asked the plaintiff's superiors not to assign the plaintiff to any more of that client's matters. The plaintiff also claims that she was terminated on or about September 20, 1995, effective immediately, that she was effectively locked out of the firm's offices by the inactivation of her access key, and that by terminating her employment in this manner, the defendants

maliciously published a false and defamatory communication to the effect that Dr. Wallace had performed some unspecified disgraceful, immoral and/or dishonest act, Skadden, Arps having previously terminated attorneys in a similar manner only when such attorneys had been caught stealing, engaging in insider training, or engaging in child molestation.

Finally, the complaint alleges that following the plaintiff's dismissal, Skadden, Arps attorneys were directed to respond to any inquiries by potential employers as to the plaintiff's qualifications by providing only the dates of the plaintiff's employment; according to the plaintiff, an employer reference providing only this information "is a well known code in the legal community for 'do not hire.'"

On November 21, 1995, the defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. On December 8, 1995, the first trial judge signed an order dismissing the complaint "for the reasons stated by the defendants in their motion." *fn3 This timely appeal followed.

B. The defamation claim.

(1) The standard of review.

The question whether the first complaint states a claim upon which relief may be granted is one of law, and our review of the trial judge's disposition is therefore de novo. Abdullah v. Roach, 668 A.2d 801, 804 (D.C. 1995) (citation omitted). A pleading "should not be dismissed for failure to state a claim unless it is beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff and, if these allegations are sufficient, the case must not be dismissed even if the court doubts that the plaintiff will ultimately prevail. Atkins v. Industrial Telecomms. Ass'n, Inc., 660 A.2d 885, 887 (D.C. 1995) (citations omitted).

(2) Defamatory meaning.

The defendants contend that the complaint fails to state a claim upon which relief may be granted because, according to them, the plaintiff has not alleged any representation by the defendants which could, as a matter of law, constitute actionable defamation. We do not agree.

"A statement is 'defamatory' if it tends to injure the plaintiff in [her] trade, profession or community standing, or lower [her] in the estimation of the community." Moss v. Stockard, 580 A.2d 1011, 1023 (D.C. 1990) (citations and internal quotation marks omitted). "If it appears that the statements are at least capable of a defamatory meaning, [then] whether they were defamatory and false are questions of fact to be resolved by the jury." Id. "One who publishes a slander that ascribes to another conduct, characteristics or a condition that would adversely affect [her] fitness for the proper conduct of [her] lawful business, trade or profession . . . is [715 A2d Page 878]

subject to liability without proof of special harm." RESTATEMENT (SECOND) OF TORTS § 573 (1977).

Even if we consider only the representations alleged to have been made by the defendants after November 1, 1994, see p. 877, supra, we are satisfied that these statements are, at least, capable of a defamatory meaning. An allegation that an attorney is often out of the office during normal working hours, although perhaps inconclusive on its face, could reasonably be construed, in context, *fn4 as a reflection on her professional performance. A false representation that a client is sufficiently dissatisfied with an attorney's work to seek the attorney's removal from the client's matters is patently defamatory. The defendants' alleged non-verbal representation (by inactivating the plaintiff's access key and thus effectively locking her out of the office) that she had done something disgraceful cannot fairly be characterized as non-defamatory as a matter of law. *fn4 Finally, the defendants' alleged coup-degrace — a directive to all attorneys to convey to prospective employers the coded message that the plaintiff should not be hired — tends to injure the plaintiff's reputation in her profession.

It may be that, at some subsequent stage of the case, the defendants will be able to present a defense of truth *fn5 or legitimate expression of opinion, *fn5 or that the plaintiff will be unable to make an adequate showing of malice. Such a determination cannot, however, be made on the basis of the complaint, standing alone.

(3) Privilege.

(a) Implied consent.

The defendants claim that the communications of which the plaintiff complains are absolutely privileged. They point out that Ms. Wallace was a summer associate at Skadden, Arps in 1992. According to the defendants, the plaintiff therefore knew or should have known that, when she was hired as an attorney associated with the firm, she would receive performance evaluations from her superiors. The defendants assert that by accepting a position as an associate, the plaintiff consented to such evaluations, whether favorable or unfavorable. The defendants argue with considerable force that [715 A2d Page 879]

an employee should not be permitted to recover damages against her employer simply because she disagrees with the employer's appraisal of her performance. They warn of a slippery slope if the complaint is not dismissed.

The concerns expressed by the defendants are legitimate, *fn6 but we do not agree with the contention that an employer's statements regarding the performance or conduct of an employee are absolutely privileged. If we were to accept the defendants' legal theory, then it would logically follow that the plaintiff could not recover for false and defamatory statements by her employer if she proved that these statements were made with actual malice. The defendants would thus escape liability even if, e.g., they falsely and maliciously represented to interested third parties, or to each other, that the plaintiff had embezzled client funds. This position runs counter to at least a century and a half of applicable jurisprudence.

The law has long recognized a privilege for anything "said or written by a master in giving the character of a servant who has been in his [or her] employment." White v. Nicholls, 44 U.S. (3 How.) 266, 287, 11 L.Ed. 591 (1845); Washington Times Co. v. Bonner, 66 App. D.C. 280, 284, 86 F.2d 836, 840 (1936). The privilege in question, however, exists only "in the absence of malice"; it is a "qualified privilege." Washington Times Co., supra, 66 App. D.C. at 284, 86 F.2d at 840 (emphasis added); Smith v. District of Columbia, 399 A.2d 213, 220-21 (D.C. 1979); Elliott v. Healthcare Corp., 629 A.2d 6, 9 (D.C. 1993); Columbia First Bank v. Ferguson, 665 A.2d 650, 656 (D.C. 1995); Edwards v. James Stewart & Co., 82 U.S.App. D.C. 123, 124, 160 F.2d 935, 936 (1947).

In order to overcome the privilege, it is "incumbent on the party complaining to show malice." White, supra, 44 U.S. (3 How.) at 287. "The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication." Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, 405 (1914); see also Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C. 1977) (quoting Ashford). *fn7 If malice is shown, however, then the privilege is lost. "[T]he basis, if any, for excusing dissemination of a defamatory report . . . within an employment group . . . is . . . the existence of a qualified privilege — a privilege which can be lost if the publication occurs outside normal channels, is otherwise excessive, or was made with malicious intent." District of Columbia v. Thompson, 570 A.2d 277, 292 (D.C. 1990) (emphasis added), modified in part on other grounds, 593 A.2d 621 (D.C.), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991); see also Thomas v. Howard, 168 A.2d 908, 909-10 (D.C. 1961). The claim that the privilege is an absolute one has been explicitly rejected by courts and commentators alike. See, e.g., Thomas, supra, 168 A.2d at 910; Walsh. v. Consol. Freightways, Inc., 278 Or. 347, 563 P.2d 1205, 1210 (1977) (citing, inter alia, W. PROSSER, THE LAW OF TORTS § 115, at 792-96 (1971)).

The defendants' theory appears to be that, at least in the context of a law firm, every employee, solely by virtue of the fact that she is an employee, consents to any comments on her performance by the employer or its agents. Were we to accept that position, we would effectively convert what has long been recognized as a qualified privilege into an absolute one, contrary to the extensive line of cases cited at page 879, supra. *fn8 We do not [715 A2d Page 880]

believe that the case law relied upon by the defendants supports so extreme a position.

In Farrington v. Bureau of Nat'l Affairs, 596 A.2d 58 (D.C. 1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1944, 118 L.Ed.2d 549 (1992), the plaintiff's employer was required by the terms of a collective bargaining agreement to prepare evaluations of each employee's performance. The plaintiff, who was a party to the agreement, sued the employer for allegedly defamatory statements in his supervisors' evaluations of his work. This court affirmed an order granting summary judgment in favor of the employer, holding that consent is an absolute defense to defamation, and that

[b]ecause appellant effectively agreed to a written evaluation of his work by his supervisors, he consented to the publication of statements within the limitations prescribed by Kraft v. W. Alanson White Psychiatric Found., [498 A.2d 1145, 1150 (D.C. 1985)] i.e., the statements must be relevant to the quality of his work, and the publication of those statements must be limited to those with a legitimate work related interest in those statements.

Id. at 60. The court rejected the plaintiff's contention that "his consent to the publication of the evaluation does not preclude the court from assessing the accuracy of the evaluation." Id. at 59.

The court's decision in Farrington that the plaintiff had consented to an unfavorable evaluation, however, was explicitly predicated on the existence of the collective bargaining agreement to which the plaintiff was a party. Indeed, as the court noted, the plaintiff "[did] not dispute that he consented to the publication," id., and he argued only that his consent did not bar his suit. In the present case, on the other hand, the plaintiff denies that she consented to the defendants' allegedly defamatory publications, *fn9 and there is no collective bargaining agreement upon which a finding of consent can be predicated. Indeed, the plaintiff alleges, and the defendants concede, that she was an at-will employee. Thus, assuming that the decision in Farrington would have been the same even if the employer had maliciously accused the plaintiff of dishonest conduct, *fn9 that case is different from the present one in critical respects.

The defendants also rely on Kraft, supra, and on Joftes v. Kaufman, 324 F. Supp. 660, 662-63 (D.D.C. 1971), but these decisions are also distinguishable, essentially on the grounds that differentiate the present case from Farrington. In both Kraft and Joftes, the determination that the plaintiff had given his implied consent to the publication of allegedly defamatory statements was based on the existence of a contractual relationship between the plaintiff and the defendant. In each instance, the contract in question provided for or contemplated the publication of the evaluations of which each plaintiff was complaining. *fn10 In the present [715 A2d Page 881]

case, at least in the absence of a contract or of some affirmative act of consent, the defendants' allegedly defamatory communications were protected by a qualified privilege only.

(b) The plaintiff's requests for evaluations.

The defendants contend, however, that the plaintiff affirmatively consented to the communications of which she now complains. They rely on the allegation in Ms. Wallace's complaint that in April 1994, after her work had been criticized by several Skadden, Arps attorneys, the plaintiff told her superiors "that she had worked with at least eight other attorneys on various projects and requested to hear the evaluations of those other eight attorneys." Complaint, para. 133. The plaintiff also asked two attorneys to "specify their complaints about the quality of her work." Id., para. 135. Finally, the plaintiff alleges that she prepared a memorandum in which she listed all of the attorneys with whom she had worked and requested that each of these attorneys be required to submit a written evaluation of her performance. Id., para. 138. The defendants claim, in effect, that with respect to any negative evaluations that were published after the plaintiff made these requests, she only got what she asked for, and that the communications in question are therefore absolutely privileged. In light of our decisions in Farrington and Kraft, the defendants' point is not without some force. *fn11

But assuming, contrary to the plaintiff's emphatic allegations, *fn12 that her requests for evaluations were voluntary, we do not believe that they can fairly be viewed as constituting consent at least to some of the defamatory communications which were allegedly made within the limitations period. Specifically, the plaintiff claims that the defendants falsely and maliciously represented [715 A2d Page 882]

that a client had demanded the plaintiff's removal from all of that client's matters. She also alleges that, by inactivating her access key, the defendants treated her like terminated employees who had done something immoral or disgraceful, and thereby represented to others that she too had engaged in such conduct. We cannot say, as a matter of law, that the plaintiff's requests for evaluations rendered these alleged communications absolutely privileged. We therefore conclude that, notwithstanding the plaintiff's alleged consent, the complaint should not have been dismissed. *fn13

(4) Statute of limitations.

In the District of Columbia, the statute of limitations for defamation is one year. See D.C.Code § 12-301(4) (1995). "Defamation occurs on publication, and the statute of limitations runs from the date of publication." Foretich v. Glamour, 741 F. Supp. 247, 252 (D.D.C. 1990) (citations omitted); see also Ogden v. Association of U.S. Army, 177 F. Supp. 498, 502 (D.D.C. 1959). Where a statement is defamatory on its face, the plaintiff's reputation is damaged immediately upon publication. Cf. Howard Univ. v. Best, 484 A.2d 958, 988-89 (D.C. 1984).

The plaintiff does not deny that she was aware of the defamatory statements, of their publication, and of some injury at the time the statements were made. Cf. Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 425 (D.C. 1986) (explaining "discovery rule"). Her right of action as to each statement therefore accrued at the time of that statement's publication.

The first sixteen counts of Ms. Wallace's twenty-four count complaint all relate to defamatory communications which the defendants allegedly made prior to November 1, 1994. Because the complaint was filed on November 1, 1995, more than a year after the conduct complained of, these counts are time-barred.

The plaintiff contends that the defendants' defamatory statements were all a part of a single continuing course of conduct, and that the statute of limitations therefore did not begin to run until after the conduct ceased following her discharge. We do not agree with this contention. The complaint alleges that the defendants made a number of discrete defamatory communications. Each of these statements constituted "a new assault on the plaintiff's reputation," and each therefore gave rise to a separate right of action. Jones v. Howard Univ., 574 A.2d 1343, 1348 (D.C. 1990). "[T]he running of the statute [cannot] be prevented by repetitions of the [defamation], although, of course, a separate action will lie for any repetition within the statutory time." 53 C.J.S. Libel and Slander § 122, at 206 (1987); and see authorities there cited.

The plaintiff relies heavily on Page v. United States, 234 U.S.App. D.C. 332, 729 F.2d 818 (1984), for the proposition that the "continuing tort" doctrine precludes the dismissal of the first sixteen counts of her complaint. In Page, a suit under the Federal Tort Claims Act, 28 U.S.C. § 2401(b) (1976), a veteran complained of injuries incurred as a result of allegedly inappropriate treatment by the Veterans Administration over a period of nineteen years. In holding that his complaint was not time-barred, the court stated:

It is well-settled that when a tort involves continuing injury, the cause of action accrues, and the limitation period begins to run, at the time the tortious conduct ceases. Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable. Moreover, since one should not be allowed to acquire a right to continue the tortious conduct, it follows [715 A2d Page 883]

logically that statutes of limitation should not run prior to its cessation.

Id. at 335-36, 729 F.2d at 821-22 (footnotes and internal quotation marks omitted). Ms. Wallace asserts that in the present case, the various defamations to which she claims to have been subjected likewise coalesced to cause harm to her reputation, and that they cumulatively led to her discharge from employment.

Assuming, dubitante, that the reasoning of Page could properly be applied to an action for defamation, *fn14 that decision can be of no assistance to the plaintiff. In National R.R. Passenger Corp. v. Krouse, 627 A.2d 489, 497-98 (D.C. 1993), cert. denied, 513 U.S. 817, 115 S.Ct. 75, 130 L.Ed.2d 30 (1994), this court declined to follow Page and rejected the federal appellate court's analysis. In Krouse, we held that once the plaintiff has been placed on notice of an injury and of the role of the defendants' wrongful conduct in causing it, the policy disfavoring stale claims makes application of the "continuous tort" doctrine inappropriate. Id. Krouse was a case under the Federal Employers' Liability Act, 45 U.S.C. § 51-60 (1988), and its reasoning applies, a fortiori, to a defamation claim in which the plaintiff has alleged a number of separate and distinct slanders and libels. See also Hendel v. World Plan Executive Council, 705 A.2d 656, 667 (D.C. 1997) (reiterating this court's refusal in Krouse to follow Page).

C. The wrongful discharge claim.

Closely tied in to the plaintiff's allegations of defamation is her claim that she was wrongfully discharged from her employment. She alleges in substance that several attorneys at Skadden, Arps engaged in various acts of misfeasance and unethical conduct, that she reported these improprieties to her superiors, and that she was first defamed and then fired for disclosing this wrongdoing.

The plaintiff has summarized as follows the improper conduct on the part of Skadden, Arps attorneys which she claims to have reported to her superiors:

(1) inadequate and incompetent supervision of junior associates,

(2) directing non-Spanish speaking attorneys and legal assistants to translate from English into Spanish portions of documents to be filed on behalf of clients, using a Spanish-English dictionary,

(3) lying to clients by altering the "as-filed" copies of documents after they had been filed,

(4) the fabrication of performance evaluations,

(5) a supervisor's false representation to a firm partner that he had prepared a document when he had in fact never read it,

(6) a supervisor's false representation to a firm partner that a client had requested that Dr. Wallace be prohibited from working on the client's matters.

Appellant's post-argument brief at 2 (numerals added; citations to the record omitted). Ms. Wallace contends that she was required by the Rules of Professional Conduct to report this wrongdoing to her superiors, that she would have been in violation of her ethical obligations as an attorney if she had failed to do so, and that her discharge for complying with the Rules was therefore wrongful.

The plaintiff relies, inter alia, on Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. 1991). We held in Adams that "a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Id. at 34. The plaintiff asserts that the Rules of Professional Conduct, which were promulgated by this court and are binding on members of the Bar of the District of Columbia, are equivalent for present purposes to a statute or regulation. The defendants do not argue to the contrary.

The plaintiff has predicated her claim on Rules 5.1 and 5.2 of the Rules of Professional Conduct. We have set forth the text of each [715 A2d Page 884]

of these Rules in the footnote. *fn15 Rule 5.1 sets forth the responsibilities of a supervisory attorney, and has no direct application to the plaintiff, who was a junior associate. Rule 5.2 focuses on the responsibilities of a subordinate lawyer, but its main thrust is to foreclose any "Nuremberg defense," i.e., a violation of the Rules is not excused even if the wrongful conduct was done at the direction of a supervisory lawyer. Neither of the Rules on which the plaintiff relies expressly imposes a duty upon the subordinate attorney to report anything to her superiors. Indeed, on their face, the two Rules appear to have nothing to do with any such claimed obligation. *fn15 Ms. Wallace has thus failed to demonstrate the existence of a legal obligation to report to her superiors the improper conduct which she claims to have observed. *fn15 Her complaint cannot be sustained under Adams.

This jurisdiction's case law with respect to the employment at-will doctrine was recently modified in some measure by our decision in Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997) (en banc) (per curiam). We have not yet had occasion to consider the question whether Carl applies retroactively to litigation which arose before that case was decided. But even if we assume that the new Carl standards may be invoked in this case, and that, to use the terminology of Carl, a duty to report perceived ethical violations to supervisory attorneys is "carefully tethered" or "firmly anchored" to Rules 5.1 and 5.2, id. at 164 n. 6 (Terry, J., joined by three other judges, concurring), id. at 197-98 n. 2 (Steadman, J., joined by one other judge, dissenting), the plaintiff still cannot prevail. *fn16 [715 A2d Page 885]

Ms. Wallace claims, as we have seen, that she was fired in reprisal for reporting six numbered categories of alleged wrongdoing to supervisors in the law firm for which she was working. See p. 883, supra. Of these six categories, the first two (inadequate supervision of junior attorneys and toleration of inadequate translations into Spanish) are more fairly characterized as poor management or foreign language deficiencies than as unethical conduct. Categories 4, 5 and 6 deal with situations in which attorneys with whom the plaintiff was embroiled in accusations and counter-accusations are said to have lied about other attorneys' assessments of the plaintiff's work (No. 4), about the true authorship of a memorandum (No. 5), or about a client's alleged dissatisfaction with the plaintiff's work (No. 6). Without condoning mismanagement or lack of forthrightness in office procedures and communications (if, as plaintiff has alleged, either of these conditions existed at Skadden, Arps), we do not believe that Rules 5.1 or 5.2 could reasonably be construed as requiring an attorney to report to Bar Counsel, or to a partner, the type of conduct here alleged by the plaintiff, nor is that conduct sufficient to trigger the application of a "public policy" exception to the "at-will doctrine." See, e.g., House v. Carter-Wallace, Inc., 232 N.J. Super. 42, 556 A.2d 353, 356, cert. denied, 117 N.J. 154, 564 A.2d 874 (1989); see also Carl, supra, 702 A.2d at 182 (Schwelb, J., joined by three other judges, concurring).

Ms. Wallace's remaining allegation of wrongdoing presents a more substantial problem. The conduct which she claims to have reported to her superiors includes "lying to clients by altering the 'as-filed' documents after they had been filed." It is not clear from the complaint whether these alleged alterations were substantive. Because we must construe the complaint in the light most favorable to the plaintiff, however, we assume that the plaintiff is alleging that the defendants made material alterations which changed the meaning of the documents in question, rather than technical corrections which did not. *fn17 If Skadden, Arps attorneys made material alterations in documents without making appropriate disclosures and without obtaining the client's consent, such conduct was not only improper but seriously so. Cf. In re Reback, 513 A.2d 226 (D.C. 1986) (en banc) (forgery of client's signature); see also In re Abrams, 689 A.2d 6, 22-23 (D.C.), cert. denied, ___ U.S. ___, 117 S.Ct. 2515, 138 L.Ed.2d 1017 (1997) (surveying cases involving dishonest conduct by attorneys).

If the plaintiff had alleged that she was discharged solely, or perhaps even primarily, *fn18 for reporting the alteration of "as filed" documents, and for no other reason, we would have a different case. Ms. Wallace, however, makes no such claim. Indeed, the alleged alteration of documents is said to have occurred, and to have been reported, in December 1993, approximately three months after the plaintiff came to work for Skadden, Arps, and long before she was fired in September 1995. Most of the alleged wrongdoing of which the plaintiff complains occurred well after the alteration incidents, but before her discharge. Accepting the description in the complaint of the sequence of events, the reporting of the alleged alterations was, at most, an early and comparatively minor contributing factor to the termination of Ms. Wallace's employment twenty-one months later. A great many other events intervened.

Moreover, it is apparent from the plaintiff's complaint that the reporting of alteration of documents represents but one of many reasons for which she claims to have been fired. She asserts, for example, that she was also defamed and ultimately discharged because "certain [d]efendants perceived [p]laintiff's extensive credentials and expertise to be a professional threat to them." The plaintiff further alleges that one of the senior associates maliciously defamed [715 A2d Page 886]

her in August 1994 "in retaliation for Dr. Wallace's refusal to cancel her daughter['s] . . . sixth birthday party," *fn19 and that this also contributed to her discharge. She also attributes her firing to the reporting of five categories of alleged wrongdoing which, we have held, she had no ethical duty to report.

Finally, the plaintiff's own description of her career at Skadden, Arps reveals that she frequently acted in a manner that reasonable people would be likely to view as disrespectful and objectionable. The complaint alleges, for example, that after Richard A. Hindman, an associate who was supervising the plaintiff, sharply criticized her writing,

Dr. Wallace responded angrily and forcefully to the effect that she did not need Hindman to teach her how to write, that she was already teaching writing in Stanford University's Structured Liberal Education Program while Hindman was still in high school and that what she needed from Hindman was to train her in the practice of Communications law, which he had failed to do. Dr. Wallace further stated that Hindman should simply leave her alone so that she could properly complete the assignment[.] [T]hen she forcefully directed Hindman to "just stay out of my face."

The complaint describes several other comparable incidents, and it is evident from the plaintiff's own narrative that she felt free to lecture, scold and "direct" attorneys who had been assigned to supervise her work. The plaintiff's complaint thus depicts a working environment in which she and several of her superiors were frequently, if not constantly, at each other's throats.

The narrow exceptions to the "employment at-will" doctrine which we have recognized in Adams and Carl were not designed to prevent an employer from terminating an at-will employee in order to eliminate unacceptable internal conflict and turmoil. It matters little, if at all, who was most at fault. An employer is not required to tolerate an intolerable working environment.

It takes more than the plaintiff has alleged to invoke a "public policy" exception to the at-will doctrine. See Carl, supra; cf. 82 AM.JUR.2D Wrongful Discharge § 15, at 688 (1992). For the reasons stated above, the plaintiff's own complaint reveals that she was not terminated solely, or even substantially, *fn20 for engaging in conduct protected by such an exception. Accordingly, her claim for wrongful termination fails.



On February 9, 1996, less than two months after the first judge dismissed her first complaint, the plaintiff filed a second action alleging that Skadden, Arps and three of its partners *fn21 engaged in employment discrimination against her on account of her race and marital status, in violation of the District's Human Rights Act, D.C.Code §§ 1-2501 et seq. (1992). She claimed that the defendants had discriminated against her on these prohibited grounds with respect to (1) her compensation; (2) the terms and conditions of her employment; (3) her discharge; and (4) referral for employment.

Relying on the first trial judge's disposition of Ms. Wallace's first complaint, the defendants moved to dismiss the second complaint on the basis of claim preclusion. The individual defendants also asserted that they were not amenable to suit under the Human Rights Act. On May 10, 1996, the second [715 A2d Page 887]

trial judge, in a brief written order, sustained the defendants' motion on both grounds. The appeal in No. 96-CV-739 followed.

A. Res judicata.

In opposition to the defendants' motion, the plaintiff filed an affidavit and the deposition testimony of a former Skadden, Arps attorney. *fn22 Viewed in the light most favorable to the plaintiff, *fn22 these materials could arguably permit an impartial trier of fact to find that the plaintiff was previously unaware of the existence of the defendants' alleged discriminatory practices, and that she could not have discovered them by exercise of reasonable diligence prior to the dismissal of the first complaint.

"[O]nce a claim is finally adjudicated, the doctrine of claim preclusion will operate to prevent the same parties from relitigation of not only those matters actually litigated but also those which might have been litigated in the first proceeding." Stutsman v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., 546 A.2d 367, 369-70 (D.C. 1988) (citations and internal quotation marks omitted). "It is the factual nucleus, not the theory upon which [the] plaintiff relies, which operates to constitute the cause of action for claim preclusion purposes." Id. at 370 (citation omitted). "[N]ewly discovered evidence normally does not prevent the application of res judicata." Guerrero v. Katzen, 249 U.S.App. D.C. 206, 208, 774 F.2d 506, 508 (1985) (citation omitted).

"[A]n [e]xception[] to this general principle occur[s], [however], when evidence . . . could not have been discovered with due diligence." Id. (citing Costantini v. Trans World Airlines, 681 F.2d 1199, 1202-03 (9th Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982)). "Of course, nothing in the rule against splitting a cause of action prevents a plaintiff from later bringing claims that . . . could not have been anticipated when the first suit was filed." U.S. Indus., Inc. v. Blake Constr. Co., Inc., 246 U.S.App. D.C. 326, 336 n. 21, 765 F.2d 195, 205 n. 21 (1985). Because the plaintiff has fairly alleged that, even with due diligence, she could not have discovered the discrimination when she brought the first suit, the complaint in the plaintiff's second suit should not have been dismissed. *fn23

B. Amenability of partners to suit.

The trial judge dismissed the complaint against the three Skadden, Arps partners on the ground that, under the District of Columbia Human Rights Act, D.C.Code §§ 1-2501 et seq. (1992 & Supp. 1998), these defendants are not amenable to suit in their individual capacities. The plaintiff contends that the judge erred in this regard. We agree with the plaintiff.

To determine whether Ms. Wallace has a right of action against the partner defendants, we look first to the language of the statute. The Human Rights Act makes it unlawful, inter alia, for an employer to discriminate against an individual on account of race, marital status, or other prohibited ground, with respect to that individual's "compensation, terms, conditions, or privileges of employment." D.C.Code § 1-2512(a)(1) (Supp. 1998). "Employer" is defined as

any person who, for compensation, employs an individual, except for the employer's parent, spouse, children or domestic [715 A2d Page 888]

servants, engaged in work in and about the employer's household; any person acting in the interest of such employer, directly or indirectly; and any professional association.

D.C.Code § 1-2502(10) (1992) (emphasis added). The Act also makes it an unlawful discriminatory practice for any person to "aid, abet, invite, compel, or coerce the doing of any of the acts forbidden under the provisions of this chapter or to attempt to do so." D.C.Code § 1-2526 (1992).

The partner defendants contend that the plaintiff was employed for compensation by Skadden, Arps, and not by the individual partners, and that therefore none of the partners is the plaintiff's employer. This argument has some force with respect to the first part of the statutory definition of "employer," but it cannot be reconciled with the phrase which we have italicized in that definition. According the italicized words their normal everyday meaning, see James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45-46 (D.C. 1989), we conclude that the partners fall within the ambit of the statute. Where, as here, the employer is a law partnership, the phrase "any person acting in the interest of such employer, directly or indirectly," necessarily includes a partner. *fn24 Indeed, if the quoted language italicized in Section 1-2502(10) does not extend to a partner in a law firm, it is difficult to conceive of any person to whom it would apply.

Moreover, if Skadden, Arps unlawfully discriminated against the plaintiff as alleged, then the partners who carried out the allegedly discriminatory acts aided and abetted the employer's discrimination, in violation of Section 1-2526. An aider or abettor is one who "in some sort associate[s] himself with the venture, . . . participate[s] in it as something he wishe[s] to bring about, [and] seek[s] by his action to make it succeed." Roy v. United States, 652 A.2d 1098, 1104 (D.C. 1995) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (Learned Hand, J.)). Even if we were to assume that the individual partners are not employers, and thus not principals in the alleged discrimination, the complaint fairly alleges that these defendants participated in the discrimination and sought to make it succeed. In Dici v. Commonwealth, of Pennsylvania, 91 F.3d 542 (3d Cir. 1996), the court held that if, as there alleged, the plaintiff's supervisor knew or should have known that the plaintiff was being sexually harassed, and if he repeatedly refused to take prompt action to end the harassment, then "[s]uch conduct, if proven, would constitute aiding and abetting," in violation of Pennsylvania's counterpart to Section 1-2526. Id. at 553. In the present case, the individual partners are alleged to have personally engaged in discriminatory conduct, and not simply to have failed to prevent it. The reasoning of Dici therefore applies a fortiori. Moreover, the presence in the Human Rights Act of the proscription against aiding and abetting refutes the partner-defendants' contention that the Act "imposes liability only on the employing entity."

In urging affirmance of the trial judge's decision, the partner defendants rely principally on federal precedents construing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. *fn25 Under Title VII, the defendants' position would arguably be correct. "[T]he clear majority of the courts of appeals that have considered this question have held [715 A2d Page 889]

that individual employees cannot be held liable under Title VII." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996) (collecting authorities), cert. denied, ___ U.S. ___, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997). Moreover, some courts have held that a partner in a law firm is not personally liable under the federal statute. See, e.g., Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352, 353 (S.D.N.Y. 1995) (citations omitted); Caplan v. Fellheimer Eichen Braverman & Kaskey, 882 F. Supp. 1529, 1532 (E.D.Pa. 1995).

We note, however, that Title VII differs from the Human Rights Act in several critical respects. First, Title VII's definition of "employer," 42 U.S.C. § 2000e (b), does not contain the phrase "any person acting in the interest of such employer, directly or indirectly." *fn26 Second, there is no provision in Title VII proscribing "aiding or abetting." The language of the Human Rights Act on which we have relied in support of our conclusion that the partner defendants are amenable to suit thus finds no analogue in the federal statute.

Moreover, Title VII does not apply to employers with fewer than fifteen employees. 42 U.S.C. § 2000e (b). As one court explained in holding that the managing partner of a law firm cannot be held personally liable under Title VII, "Congress would not have exempted employers with up to 25 [later 15] employees from liability, but kept an individual open to personal liability." Caplan, supra, 882 F. Supp. at 1532. The logic that the court found "persuasive" in Caplan is not available to the partner defendants here, for the Human Rights Act contains no exception for small employers. On the contrary, if an employer who employs only a single individual is subject to the Act, it is unlikely that the Council intended to protect partners in a large law firm from individual liability.

Our Human Rights Act was designed "to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit. . . ." D.C.Code § 1-2501 (1992). "Civil rights statutes are remedial and must be generously construed." Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 398 (D.C. 1991) (interpreting Human Rights Act). If we were to adopt the construction of the Act urged on us by the partner-defendants, then a plaintiff could secure no relief — not even an injunction prohibiting further discrimination in the future *fn27 — against an individual partner who has personally and willfully denied the plaintiff the equal employment opportunity which is the plaintiff's due under the Act. We do not believe that the Council contemplated such a result, and we therefore hold that the Skadden, Arps partners were properly joined as defendants.



In No. 96-CV-34, the judgment of the trial court is affirmed in part and reversed in [715 A2d Page 890]

part. In No. 96-CV-739, the judgment is reversed. Each case is remanded to the trial court for further proceedings consistent with this opinion.

So ordered.

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