Appeal from the Superior Court of the District of Columbia (CAB 4992-04) (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before RUIZ and THOMPSON, Associate Judges, and FARRELL, Associate Judge, Retired.*fn1
After appellant Susan Clampitt was terminated from her position as Executive Director of WAMU, a public radio station owned and operated by American University, she sued the University and its then-President Benjamin Ladner, alleging breach of employment contract; tortious interference with contract; breach of the duty of good faith and fair dealing; defamation; and a refusal by the University to pay her for accrued but unused vacation benefits. The trial court dismissed all the claims, either on the pleadings or on summary judgment. Clampitt appeals from the orders of dismissal and also seeks review of the trial court's order declining to compel production of a certain document that the University withheld on the ground that the document is attorney work product. We affirm the trial court's rulings as to all claims except the defamation claims against the University and Ladner. We reverse as to the dismissal of those claims, concluding that Clampitt is entitled to present them to a jury.
We briefly summarize the pertinent facts in the light most favorable to Clampitt, relying primarily on the documentary evidence and Clampitt's deposition. This is appropriate because, for purposes of review of an order granting summary judgment, we are to view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor. Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (in considering a motion for summary judgment,"[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-moving party's] favor").
The University hired appellant to be the Executive Director and General Manager of WAMU in the Spring of 2000, after conducting a nation-wide search to fill the position. Clampitt alleged in her Amended Complaint and stated in her deposition that during a meeting with then-President Ladner in the spring of 2000, Ladner told her that he wanted to hire a general manager who would make a long term commitment to the station and asked for assurances from Clampitt to that effect. Clampitt, who was fifty-nine years old at the time, told Ladner that if she should get the job, she intended it to be the "capstone of her long career" and the job she would have until she retired. After Ladner offered Clampitt the position,Clampitt met with the University's Vice President of Enrollment Services, Tom Myers, to discuss the terms of employment.*fn2 Clampitt testified that she asked Myers for a guarantee by the University, in exchange for her willingness to take the job at a lower salary than she had sought, that she could remain in the position until she chose to retire from it, which she expected to be when she could transition to "full" Social Security benefits. Clampitt testified that Myers told her that he could not put such an assurance in writing, but also told her, "you can retire when you're... in your 70's." Thereafter, Clampitt left her position as an Assistant Administrator of the General Services Administration and abandoned all other job search activities to accept the position at WAMU. She received an April 24, 2000 letter confirming the terms of her employment.*fn3
Soon after her arrival at the station, Clampitt launched an effort to improve station operations in order to increase the size of the listening audience and to attract new and larger contributions from donors. The budgets that she proposed called for use of the station's cash reserves to finance improvements, a strategy that would require the station to incur operating deficits in the initial years. On September 12, 2000, Ladner specifically approved a spending plan that acknowledged that while "reserves are not meant to cover budget deficits," use of reserves to enable the station to invest in fundraising, marketing, programming and salary increases could "cover overexpenditures and produce larger revenue streams in the future." Clampitt testified that "[t]his is something that President Ladner and I did together, and he signed off on everything."
During Clampitt's tenure at the station, listenership and overall revenues grew significantly, foundation revenue increased substantially, and the station and Clampitt won many awards and recognition. In his annual performance review of Clampitt dated September 10, 2001, Myers said that he would recommendClampitt for "the highest merit raise possible." In his review dated August 26, 2002, Myers stated that he was pleased with Clampitt's accomplishments and thanked her for her "excellent work during this past year." On August 13, 2003, Myers wrote that he was "pleased with [Clampitt's] performance and management during these trying times."
But station revenues were not as high as expected, in part because investments were not generating the "return that was hoped for" and because of a database problem that hampered fundraising efforts, and "it was very hard to get ahead" because the fees that WAMU had to pay to the University were very high. At a meeting in June 2003, one of the station's talk show hosts, Diane Rehm--who, Clampitt testified, was unhappy with a number of programming and staff changes that Clampitt had made and set about "sowing dissension among the staff against" Clampitt--"stood up in a meeting... and said that [Clampitt] had squandered the station's money." Also in June 2003, a group of WAMU donors and supporters wrote a letter to Ladner asserting that the "current management's spending is out of control" and expressing alarm at "significant financial losses at the station over the last three years that endanger the station's viability." At a meeting in July 2003, Ladner "expressed... that he wanted a balanced budget in two years."
On October 20, 2003, the Washington Post published a story about WAMU, stating that "[a]fter years of balanced budgets--even financial surplus--the nonprofit [station] has been awash in red ink, with large operating deficits in each of the last three years and an emergency cash fund that has been depleted of millions of dollars."*fn4 The article also reported that major donors had appealed to Ladner, demanding explanations.
Clampitt asserts that neither Ladner nor the University made any effort to inform the public that the University had specifically approved Clampitt's financial and budgetary recommendations. Instead, Clampitt asserts, she was "scapegoated." On October 30, 2003, Ladner met with Clampitt to inform her that he was terminating her employment. He gave her a termination letter, dated October 29, 2003, that cited the reasons for termination as being "an extremely serious management crisis with the staff, a public relations disaster with the Washington media, and three successive years of increasing and unacceptably large financial losses, which have substantially impaired station operations." The letter asserted that Clampitt was fired "for cause." Thereafter, according to one news report dated November 3, 2003, the University's Director of Media Relations told the press that "Clampitt was relieved of her duties... after the Washington Post exposed a financial deficit and morale problems" at WAMU. The day after the termination, the Post quoted Ladner as saying that "his decision was based on several factors, including the continuing pattern of deficits...."*fn5
On June 30, 2004, Clampitt filed her complaint against the University and against Ladner in his personal capacity. As her counsel told the court at a hearing on the University's motion for summary judgment, Clampitt expected to testify at trial that she "was told repeatedly in the weeks and months after her termination that she could not be hired anywhere else. She was radioactive. You Google her name and the first thing that pops up is Clampitt terminated by American University under cloud of financial improprieties and staff mismanagement."
In his deposition on December 16, 2004, Ladner testified that he reviewed a two-page summary of questions or issues prepared by defense counsel in preparation for the deposition. Clampitt then filed a motion to compel production of the two-page document. The trial court denied the motion at oral argument and in a subsequent written order. On October 12, 2006, the trial court granted the University's motion for summary judgment as to the defamation count against the University, having already granted appellees' motion to dismiss on the pleadings Clampitt's claims against Ladner in his personal capacity. By order dated January 9, 2007, the trial court granted summary judgment as to the remaining counts of the Amended Complaint. This appeal followed.
We review a trial court's rulings on discovery for an abuse of discretion. Futrell v. Department of Labor Fed. Credit Union, 816 A.2d 793, 809 (D.C. 2003). We may reverse a trial court's ruling on discovery issues only if the ruling goes beyond the reasonable exercise of discretion. White v. Washington Metropolitan Area Transit Authority,432 A.2d 726, 728-29 (D.C. 1981).
We review a trial court's grant of a motion for summary judgment de novo. Kotsch v. District of Columbia, 924 A.2d 1040, 1044 (D.C. 2007) (citing Woodland v. District Council 20, 777 A.2d 795, 798 (D.C. 2001)). Our standard of review is the same as the trial court's standard for initially considering a party's motion for summary judgment; that is, summary judgment is proper if there is no issue of material fact and the record shows that the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c).
We review de novo a trial court's dismissal of claims on the pleadings pursuant to Super. Ct. Civ. R. 12 (b)(6). Chamberlain v. American Honda Fin. Corp., 931 A.2d 1018 (D.C. 2007). Like the trial court, this court must "accept all of the allegations in the complaint as true, and must construe all facts and inferences in favor of the plaintiff." Murray v. Wells Fargo Home Mortgage, 953 A.2d 308, 316 (D.C. 2008). Because "[o]ur rules reject the approach that pleading is a game of skill in which one misstep... may be decisive to the outcome" and "manifest a preference for resolution of disputes on the merits, not on technicalities of pleading," we construe pleadings "as to do substantial justice." Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 787 (D.C. 2001) (citing Super. Ct. Civ. R. 8 (f); other citations and internal quotation marks omitted). "Dismissal for failure to state a claim on which relief can be granted is impermissible unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Murray, 953 A.2d at 316 (citations and internal quotation marks omitted). At the same time,'[f]actual allegations must be enough to raise a right to relief above the speculative level...." Bell Atl. Corp. v. Twombly, 127 S.Ct 1955, 1965 (2007).
We begin with Clampitt's challenge to the court's discovery ruling, recognizing Clampitt's argument that if she prevails on this claim, at least conceivably she could discover additional information with which she could support one or more of her dismissed claims.
At his deposition, in response to a question about whether he had reviewed any materials to prepare for the deposition, Ladner testified that he had reviewed a "summary of questions or issues of about two pages that counsel prepared to discuss with me." Thereafter, Clampitt moved to compel production of the document that Ladner described.*fn6 The University's counsel represented to the court that when he met with Ladner prior to the deposition, he (counsel) used the worksheet, a copy of which he left with Ladner, to "verify [counsel's] understanding of the facts of the case," facts "which were otherwise third-hand given to me before then." Clampitt's counsel argued that seeing how Ladner's counsel had framed the issues necessarily would have influenced how Ladner framed his answers. The trial court denied the motion to compel, reasoning that a document that a lawyer "prepared in order to interview his client" is protected by attorney-client privilege. The court also noted that Clampitt's counsel had not asked for the document at the time of Ladner's deposition, with the result that Clampitt would be able to use the document only on cross-examination, "as something in the nature of an impeaching document."
In arguing that the trial court's ruling was an abuse of discretion, Clampitt relies on Rule 612 of the Federal Rules of Evidence, which provides that "if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced...."*fn7 But, as the University argues, in his deposition questioning of Ladner, Clampitt's counsel did not elicit testimony that the two-page list of "questions or issues" refreshed Ladner's recollection; indeed, counsel asked no follow-up questions about the two-page document.*fn8 Thus, Clampitt did not establish the first of the "three foundational elements [that] must be met before Rule 612 is applicable with respect to documents reviewed by a witness to prepare for a deposition," i.e., that "a witness must use a writing to refresh his or her memory." Nutramax, 183 F.R.D. at 468; see also Sporck v. Peil, 759 F.2d 312, 318 (3d Cir. 1985) (holding that "deposing counsel failed to lay a proper foundation under Rule 612 for production of the documents selected by counsel" in that he "failed to establish either that petitioner relied on any documents in giving his testimony, or that those documents influenced his testimony"); Suss v. MSX Int'l Eng'g Servs., Inc., 212 F.R.D. 159, 165 (S.D.N.Y. 2002) ("'Relied upon' means more than simply reviewing.... Unless there is some demonstrated impact on the witnesses testimony, the witness cannot be deemed to have relied on the document"). Accordingly, we conclude that the trial court did not abuse its discretion by denying Clampitt's motion to compel.*fn9
In this jurisdiction, the general rule is that "an employment contract... is terminable at the will of either party." Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 268 (D.C. 1993). Clampitt contends that she had an oral contract or an implied contract of employment with the University that took her employment arrangement outside that general rule. More specifically, she contends in her brief that the University breached its oral agreement that she could remain in her position at WAMU until she chose to retire, which she expected would be at age 70. She argues in the alternative that the terms of the University's "Executive/Senior Staff Personnel Policies" Manual (the "Senior Staff Manual" or the "Manual") created an implied contract of employment under which she could be terminated only for legitimate cause.
The trial court held that Clampitt's oral contract claim was barred by the statute of frauds, under which no action may be brought "upon an agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action is brought, or a memorandum or note thereof, is in writing,... signed by the party to be charged therewith or a person authorized by him." D.C. Code § 28-3502. Clampitt's claim, the court reasoned, was that the University made a promise of "at least eleven years of employment," a promise that the court found "cannot be performed within a year." The court noted that, in their depositions, Ladner and Myers disputed that any such promise was made. Ladner recalled talking with Clampitt about "her commitment if she took the job, her enthusiasm for the position, and her wanting to, you know, succeed in the position," but testified that he could not recall talking with Clampitt about the terms of her employment. Myers testified that he recalled no discussion in which Clampitt asked "that she be able to remain at WAMU until she retired or until she decided to retire" and also recalled no discussion about Clampitt "wanting or expecting to be able to work until age 70 " or "until any age at all,"*fn10 or about Clampitt wanting the WAMU job to be her last job before retirement. Myers further testified that he did not tell Clampitt "that she would be able to work until age 70." The court observed that the only writing in the record that "[came] close to the writing required" by the statute of frauds was the April 24, 2000 job offer letter signed by Ladner, seenote 2, supra, which made no mention of the "durational expectations of either party and thus fails under the statute."
Arguing that the trial court's ruling was in error, Clampitt relies on our case law holding that if an agreement is "capable, possible, or susceptible of performance within one year, the statute of frauds does not apply and an oral agreement may suffice." Launay v. Launay, Inc., 497 A.2d 443, 449 n.4 (D.C. 1985); see also Rinck v. Association of Reserve City Bankers, 676 A.2d 12, 16 n.3 (D.C. 1996) ("Since the employment agreement at issue was capable of being performed within a year, it is not deficient under the statute of frauds."). She contends that the oral contract she alleges was susceptible of performance within a year because she might have chosen to retire within a year of being hired, and thus much sooner than age 70.
Clampitt likens her case to the facts of Hodge v. Evans Fin. Corp., 262 U.S. App. D.C. 151, 823 F.2d 559, 561 (1987). The facts of that case were that plaintiff Hodge met with Tilley, the president of Evans Financial Corporation, to discuss Hodge's possible employment by Evans. Tilley asked Hodge what his conditions were for accepting a job with Evans, and Hodge replied, "No. 1, the job must be permanent. Because of my age, I have a great fear about going back into the marketplace again. I want to be here until I retire." 823 F.2d at 561. Hodge testified that Tilley's response was "I accept that condition." Id. Hodge accepted Evans's offer of employment as vice president and worked for Evans from September 1980 until he was fired by Tilley on May 7, 1981. Id. The United States Court of Appeals for the District of Columbia Circuit, applying the District of Columbia statute of frauds, agreed with Hodge's argument that his contract was "a permanent or lifetime employment contract" that could be enforced despite the statute of frauds "because it is capable of full performance within one year if the employee were to die within the period." Id. at 562. The court reasoned that "Hodge's view of the statute's applicability to lifetime or permanent employment contracts has, in fact, been accepted by an overwhelming majority of courts and commentators."*fn11 Id.; see also id. at 563 ("employment contracts of an uncertain or permanent duration are excluded from the statute"); Coan v. Orsinger, 105 U.S. App. D.C. 201, 265 F.2d 575, 578 (1959) ("If the contingency which fulfills and completes the terms of the contract happens or could possibly happen within a year, the contract is not within the statute.").
The Hodge court distinguished Prouty v. National R.R. Passenger Corp., 572 F. Supp. 200 (D.D.C. 1983) (involving an allegation that plaintiff "was promised employment with Amtrak until he was eligible for retirement at the age of sixty-five," id. at 204), and Gebhard v. GAF Corp., 59 F.R.D. 504 (D.D.C. 1973) (involving an allegation that defendant guaranteed plaintiffs "employment until age 65, " id. at 506), as cases not involving alleged contracts providing for indefinite, lifetime or permanent employment, but instead cases in which plaintiffs alleged that the oral contracts at issue guaranteed them employment "for a specified period of time." Hodge, 262 U.S. App. D.C. at 155, 823 F.2d at 563. The court reasoned that "an oral employment contract for a stated, definite term of years exceeding one year (like those alleged in Prouty and Gebhard) is unenforceable on the rationale that the employee's possible death within one year would'defeat' rather than'complete' the express terms of the contract." Id.*fn12
We conclude that, on the basis of Clampitt's own words, her case is more like Gebhard and Prouty than like Hodge.*fn13 In describing the process of interviews that led to her hiring, Clampitt testified that the interviewers "wanted to make sure that I was not just there for a year or two and then on to something else. They--they made it very clear that they were looking for somebody there for the long haul." When Clampitt met with Ladner, she testified, he asked whether she was "prepared to make a commitment in terms of time" and "seemed pleased" when Clampitt stated that she "saw it as the last job [she] would ever have." After Ladner offered Clampitt the job at a salary that she told him was not adequate, she met with Myers to ...