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Millstein v. Henske

January 28, 1999


Before Schwelb and Farrell, Associate Judges, and King, Senior Judge.

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

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia (Hon. Linda Turner Hamilton, Trial Judge)

Argued December 17, 199

In this appeal from the grant of summary judgment to the defendant ("Henske"), the plaintiff ("Millstein") contends that triable issues of fact exist as to whether Henske (1) unlawfully retaliated against her because of a fellow employee's participation in filing a gender and race discrimination complaint with the employer, see D.C. Code § 1-2525 (a) (1992); and (2) defamed her in a written performance evaluation. We reject Millstein's invocation of a third-party reprisal theory on the facts of this case; hold as to defamation that she has not overcome Henske's qualified "common interest" privilege; and therefore affirm.


A. The Facts

In 1983 Millstein, a nurse practitioner, began working at the Georgetown University Law Center Student Health Services Clinic (the "Law Clinic"). Although she was the Law Clinic's sole clinician, her work was supervised by doctors. At the time and for some years thereafter, an apparent practice existed whereby doctors would pre-sign prescription forms to enable Millstein and other practitioners to fill out certain prescriptions for students. The practice continued at the Law Clinic during the period of 1988 to 1994 when Millstein was supervised by Dr. Jane Chretien. Chretien's relationship to Millstein, as the doctor stated in her deposition, was a "[p]rofessional one"; she had been "a colleague [of Millstein] for twelve . . . or thirteen years."

In January 1993, nine student health employees *fn1 lodged a complaint with the Georgetown Office of Affirmative Action Programs alleging gender and race discrimination and unprofessional behavior on the part of defendant Henske, the Director of Student Health Services. Dr. Chretien, who was Acting Medical Director of Health Services at the time, wrote the complaint and was apparently the liaison between the employees and the university's affirmative action committee. Millstein, on the other hand, was not a complainant, was not interviewed in connection with the complaint, and by her admission had "zero to do with it." The complaint was resolved in March 1993 with a finding of no evidence of race or gender discrimination, but some evidence of differential treatment and unprofessional behavior.

Soon after the complaint was resolved, Dr. Chretien applied twice for the position of permanent Medical Director of Health Services. Each time, the committee to select the director dissolved itself, and in fact no director was selected because the Georgetown University Medical Center proposed to take over management of the Student Health Center. During a subsequent staff meeting which was to become important to this litigation, *fn2 Millstein publicly asked why Dr. Chretien had not received the medical director position, pointing to her 22 years at Georgetown and her dedication to student health. In doing so, though, Millstein made no reference to the earlier discrimination complaint. While he was in the hospital sometime after this meeting, Henske asked Nurse Larkin, a fellow employee of Millstein, why "Connie [Millstein] is against me," presumably referring to her criticism at the meeting. In this conversation, neither Larkin nor Henske linked the criticism to the 1993 discrimination complaint. Dr. Chretien left Georgetown University in September 1994, and Henske became Millstein's direct supervisor.

At a meeting on September 7, 1994, Henske told Millstein that a law student had complained about the use of pre-signed prescriptions at the Law Clinic. Henske and Dr. Wills, a senior health physician who was also present, told her that the practice had ended at Main Campus and should be stopped immediately at the Law Clinic. Henske and Millstein met again on December 13, 1994, and Henske told her that she would not receive her performance review in December (as had previously been the case) because he felt the evaluation would be negative in light of the student complaint and Millstein's use of the pre-signed scripts. Millstein wrote a letter to Henske the next day, with copies to the university president and other officials, in which she protested (among other things) that she had not been informed of the change in the prescription practice -- which had been in effect since 1983 -- until the September 7 meeting. *fn3 She followed this up with a December 15 letter to Dr. James Donahue, Dean of Student Affairs, asking rhetorically whether Henske's conduct toward her on December 13 had not reflected discrimination and retaliation. Henske, apparently informed of the letter, responded in late January 1995 with a memo to Millstein stating that "our time would be far better spent addressing the quality of your performance rather than being immersed in a dispute over the timing of your evaluation."

Accordingly, on February 1, 1995, Henske wrote an evaluation of Millstein in two parts. The first was a form to be placed in her Human Resources file, in which he rated her performance "satisfactory" overall and gave her a 3.3% raise. The second was a memorandum not to become part of her file, but carbon-copied to Dean Donahue, two Deans of the law school, and the law school Registrar. In it Henske explained that, while Dr. Chretien had "felt that [Millstein] had (at least) satisfactorily met the performance requirements of [her] job," he could not give her her performance review at that time because he had not had enough time to evaluate her and, further, had become aware of "deficiencies [in her] . . . performance" that precluded a satisfactory rating at the time. After listing several deficiencies, Henske described how Millstein's future supervision would be carried out, and concluded with these paragraphs:

You and I have also discussed the use of pre-signed prescription pads. As I have told you the use of pre-signed prescriptions is illegal and unprofessional. Since my employment at Georgetown University, there has never been an approved policy to make pre-signed prescriptions available to the practitioner. Dr. Wills assures me that such a policy or practice does not exist in the Main Clinic. In my opinion, anyone pre-signing or knowingly completing a blank pre-signed prescription form (especially for a controlled dangerous substance) also demonstrates faulty professional judgment. You have advised me that this practice ended in August, 1994. It may not be reinstated at any time in the future.

I will be conducting a follow-up to this evaluation in approximately 60 days. By that time, I expect significant progress to have been made on ...

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