September 25, 2008
SUSAN CLAMPITT, APPELLANT,
AMERICAN UNIVERSITY, ET AL., APPELLEES.
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
Argued June 12, 2008
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 negotiate and asked him for a written contract, which he said would be against University policy. In the following exchange at her deposition, Clampitt gave her account of what next transpired:
Q:... And you said what?
A: I said that I needed more than a handshake.
Q: And he [Myers] said?
A: And I said to him that I needed the assurance that I could be there until I retired.
Q: And he said?
A: And he said, Well, of course, you can be here until you're retired.
Q: And what was the next discussion?
A: And I said I was not planning to retire anytime soon.
Q: And he said?
A: And I said--And I said that I couldn't imagine retiring before I was 70. And he said, You can retire--Then you can retire when you're--you know, in your 70's.
Q: He said, Then you can retire when you're 70?
A: Yes. And there may have been some discussion about mandatory retirement at age 70.
When Clampitt called Myers after that meeting to say that she would accept the job, she "told Myers that [she] was very uncomfortable about not receiving a written contract. And, again, he assured me." The following questions and answers ensued:
A: I said, Tom, I'm counting on you for this.... I'm counting on you... and President Ladner that your word is--is good.
Q: As to what?
A: As to the retirement and duration of my job.
Q.: That's what you said to him?
Q: And he said?
A: And he said yes.
Elsewhere in her deposition, Clampitt said, "I was promised I would be there until I was 70 years old...." In response to questioning by her own counsel, Clampitt clarified:
Q: During the face-to-face meeting with Tom Myers in his office to negotiate--the one meeting as opposed to the phone conversation that you testified about--to negotiate your terms--I believe what you said was--and correct me if I'm wrong--in response to your statement to Tom Myers that you wanted to--would be able to retire from the job at 70--what he said was, "Of course you can retire at 70," is that accurate?
A: What I meant to say was I could retire from that job when I was 70.
Q: Well, what, if anything, did Mr. Myers say about you retiring at 70 vis-a-vis the duration of your job.
A: I could retire from that job when I was 70.
Q: Okay. Did he say anything else about that vis-a-vis the duration of the job?
A: He said that I could be in that job until I was 70, in my seventies--you know, I was 70. He didn't say whether it was the first day I was 70 or the last day I was 70.
Q: Well that was my next question, if you had any conversation with him about any particular time that you reached 70 years of age that you had anticipated retiring. Was it the day you turned 70?
A: No, we did not discuss whether it was the day I turned 70 or--we just used the word "seventy."
Q: Was there any particular--
A: And I used--And I used that because that was when I could--I would be able to take full Social Security retirement benefits.
Q: During that series of questions that Mr. Semler asked you about this, you made some reference to some discussion you might have had with Mr. Myers about mandatory retirement. Can you elaborate on that? Are you aware of anything on university documents about that?
A: I wasn't at the time, but he said that there was a mandatory retirement at 70.
Q: By that wasn't--Okay. I'm sorry. He said that during this--
Q: Did he say anything about whether that meant, on the day you turned 70 you were expected to retire or how that was put into effect?
A: He said I could be in that job until I chose to retire from that job.
Q: Right, but how did the "70 " come in, the reference to "70"?
A: I mentioned 70 because it was--you know, I probably said at least 70 because what I was thinking was Social Security.
Q: Okay. You then said you had a telephone conversation with him in which you described that he again reassured you. Can you relate that conversation? I think all you said was, again, he reassured me. He said yes. It wasn't really clear what he was saying yes to you, and I want you to--
A: I said again that I wanted a written--I wanted something in writing. I said that I could not--you know, I was not comfortable without having it in writing. And I asked him again if he could assure me that I could stay in that job until I chose to retire.
Q: And what did he say, if anything, in response?
A: He said, "Of course."
Thus, in her deposition, Clampitt repeatedly characterized the oral contract with the University not only as a promise that she could hold the job at WAMU until age 70, but also as a promise and mutual expectation that she would do so. In her Amended Complaint, she alleged that she "had a binding contract of employment with [the University] for the specific term ending in the year she turned 70 and on the date she chose to retire." Similarly, in her Statement of Material Facts in Dispute in Support of Opposition to Defendant's Motion for Summary Judgment, Clampitt summarized her contention as, "Plaintiff agreed to stay at the position for a substantial period of time, at least until the age of 70 when she would be eligible for full social security benefits."
Clampitt's statements make apropos the holding of Gebhard, that "an oral contract obviously contemplating long-term employment is void under the Statute of Frauds." Gebhard, 59 F.R.D. at 506. Consistent with her characterization of the alleged oral agreement, it seems correct to say that any decision she might have made to retire early, within a year of being hired, would have defeated rather than completed the terms of the oral contract--meaning, as the trial court ultimately concluded, that the oral contract Clampitt seeks to prove could not have been completed within one year.*fn14 Such oral agreement not having been memorialized in a writing signed by the University, and the University not having admitted facts demonstrating that there was an oral agreement for long-term employment,*fn15 Clampitt's suit to enforce the oral agreement she alleges was barred by the statute of frauds, and the trial court did not err in so holding.*fn16
We next consider Clampitt's claim that the trial court erred in dismissing on summary judgment her claim that the University breached an implied contract of employment. Our case law recognizes that "under certain circumstances, the provisions of an employment handbook may constitute an implicit contractual limitation upon an employer's otherwise unfettered right to terminate its employees." Howard Univ. v. Lacy, 828 A.2d 733, 739 n.7 (D.C. 2003); see also Washington Welfare Ass'n v. Wheeler, 496 A.2d 613, 615-16 (D.C. 1985) (stating that an "employer's personnel manual is evidence of the terms and conditions both employer and employee accept as part of the agreement," and concluding that where an employee "Manual evidences intent of the parties that specific preconditions had to be met before employment could be terminated," the employment contract is "distinguishable from a pure'at will' contract"); Rinck, 676 A.2d at 16 ("a personnel manual that states specific preconditions that must be met before employment will be terminated is sufficiently clear to rebut the presumption of at-will employment"); Strass v. Kaiser Found. Health Plan, 744 A.2d 1000, 1013-14 (D.C. 2000) (same). Where an employee manual "provide[s] for termination only under... conditions" set forth therein and states that all staff members are to be given a copy and are to acknowledge receipt in writing, "[s]uch factors provide evidence from which it may be reasonably inferred that the parties intended the manual to establish contractual rights between them." Nickens v. Labor Agency of Metro. Washington, 600 A.2d 813, 817 (D.C. 1991); see also Sisco v. GSA Nat'l Capital Fed. Credit Union, 689 A.2d 52, 54-55 (D.C. 1997). In such circumstances, an enforceable contract may be found even if the employee did not peruse the manual when it was received. See Nickens, 600 A.2d at 817 n.2 (reasoning that an employer "cannot avoid obligations under the policies because the employee failed to read them").
The Senior Staff Manual--which Clampitt contends overcame the presumption of at-will employment--provides, at section 2.1, that "appointments of... Senior Staff are presumed to be continuous, subject to the provisions for termination...." Section 2.6 of the Manual sets out the provisions governing terminations, stating that Senior Staff may be terminated only (a) for cause;*fn17 (b) when the responsible University officer determines such action is in the best interest of the University; or (c) when the position is eliminated because of reorganization." Clampitt contends that, contrary to the statement in her termination letter that she was being fired "for cause," the University did not have "cause" to terminate her, and that it breached the implied contract created by the Senior Staff Manual when it fired her.
The trial court dismissed Clampitt's implied contract claim on the basis of Clampitt's testimony at her deposition that she had never before seen the Senior Staff Manual and her answer, when asked whether anyone had ever given her a copy of the Manual, of "No, I received something different." Clampitt contends that a genuine question of fact nevertheless exists as to whether the policies described in the Senior Staff Manual established a contract (i) because the University produced the Senior Staff Manual during discovery in response to Clampitt's request for "[a]ll personnel policy handbooks applicable to the employment of Plaintiff"; (ii) because the Manual states that "Executive or senior staff members are furnished copies of this manual"; and (iii) because she testified at her deposition that "somebody from HR came and gave me a whole bunch of documents" at the time of her orientation, permitting an inference that the Senior Staff Manual was among the documents she was given.
However, as the trial court noted, Beth Muha, the University's Executive Director of Human Resources since 1998, testified in her deposition that the Manual, dated 1984, "needed to be revised, and at some point prior to my employment a decision was made to stop distributing it." Muha testified that the Manual "was not being distributed to senior staff" after she came in, that to her knowledge it was not distributed to Clampitt, and that Clampitt never discussed it with her. Similarly, Grace Karmiol, the University's Director of Human Resources Policies and Regulatory Affairs since 1999, testified that the Manual had been under revision for as long as she had been at the University and was "not disseminated. Karmiol testified that her office used the Manual as "guidance only" and as "guidelines internally for human resources," but that the Manual was "not distributed internally" and, during her tenure, was not "usually" or "uniformly" distributed to senior staff members such as Clampitt. Karmiol was "not aware of a copy being given to Ms. Clampitt" and testified that the Manual was not posted on the University intranet during the period of Clampitt's employment.
Clampitt argues that the foregoing record evidence "creates significant disputed issues of fact" that precluded summary judgment. We disagree. To avoid summary judgment, Clampitt was required to "set forth specific facts showing that there is a genuine issue for trial," Super. Ct. Civ. R. 56 (e), and "some significant probative evidence tending to support [her] complaint." Warren v. Medlantic Health Group, Inc., 936 A.2d 733, 737 (D.C. 2007). "[A]ll justifiable inferences [were] to be drawn in [Clampitt's] favor," Allen v. Yates, 870 A.2d 39, 44 (D.C. 2005), but for her to avoid summary judgment, the inferences she asked the court to draw had to be "based on more than speculation." Rogers Corp. v. EPA, 348 U.S. App. D.C. 352, 275 F.3d 1096, 1103 (2002).
She was not entitled to avoid summary judgment "by merely asserting that the jury might, and legally could, disbelieve"the defendants. Anderson, 477 U.S. at 256-57; see also Gould v. Kemper Nat'l Ins. Cos., 1996 U.S. App. LEXIS 4844, *5 (7th Cir. 1996) ("the mere possibility of disbelief is not enough to avoid summary judgment. There must instead be evidence from which a rational factfinder could infer that the [defendants] lied") (citation and internal quotation marks omitted).
Thus, to get to the jury on a claim that the University was contractually bound by the policies in the Senior Staff Manual, Clampitt was required to set forth "significant, probative evidence," Warren, 936 A.2d at 737, that the Manual was given to her or that it was published or distributed to all employees. See Sisco, 689 A.2d at 55 (noting that the teaching of this court's decisions is that "assurances by an employer in a personnel or policy manual distributed to all employees that are clear enough in limiting the right to terminate to specific causes or events will overcome the presumption of at-will employment" (italics added) (quoting Rinck, 676 A.2d at 16-17), and stating that "[w]e look to both the terms of the manual and the manner of its distribution to determine whether a jury issue is presented"); see also id. at 57 (noting that an "employer's intent to be bound" by discipline and discharge policy can be inferred where the policy is "expressed in a written manual given to all employees" and holding that "remaining with an employer after receipt of a personnel manual promising job security supplies the necessary consideration to make the promise legally enforceable") (italics added). Clampitt could not rest on the possibility that the jury might disbelieve the explanations of the University's Human Resources officers that the Manual had not been distributed for years, was obsolete and under revision, was used only for guidance, and to their knowledge had not been distributed to Clampitt. Nor could Clampitt rely on the mere possibility that the Manual was among the "whole bunch of documents" she received when she came on board. Because Clampitt had no affirmative evidence that she received, relied on or bargained for policies set forth in the Senior Staff Manual when she began or continued her employment, the trial court did not err in ruling that the University was entitled to summary judgment on Clampitt's implied contract claim.*fn18 See Howard Univ., 828 A.2d at 739 n.7 (for a contract to be implied, "an employee must demonstrate that the employer made a promise concerning the time or manner in which the employment could be terminated and that the promise is enforceable because the employee gave consideration or otherwise reasonably relied upon the promise to his detriment").
Because we conclude, as discussed supra, that the University was entitled to summary judgment on Clampitt's claims that she had an oral or implied contract of employment, we also conclude that the trial court properly dismissed Clampitt's claims for tortious interference with contract and for breach of the duty of good faith and fair dealing. See Sorrells v. Garfinckel's, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285, 289 (D.C. 1989) (noting that the first element of the tort of intentional interference with contractual relations is the existence of a contract);*fn19 Hais v. Smith, 547 A.2d 986, 987 (D.C. 1988) ("in every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing") (citation and internal quotation marks omitted)); Kerrigan v. Britches of Georgetowne, 705 A.2d 624, 627 (D.C. 1997) (holding that "as an employee at will, not under contract," plaintiff had "no basis for claiming breach of a'covenant'").
The premise for Clampitt's defamation count is her claim that the University effected a "public termination of Clampitt's employment at a time when stories in the press suggested that she was mismanaging finances and her staff at WAMU." Clampitt asserts that the University, through Ladner, took this action even though Ladner had specifically approved Clampitt's financial and budgetary recommendations and thus knew or should have known that the allegations or implied accusations of financial mismanagement were false and without foundation. We understand Clampitt's claim about a "public" termination to relate to statements that the University and Ladner made to the press in the immediate wake of Clampitt's firing, announcing, and explaining the termination decision.*fn20 The trial court dismissed Clampitt's defamation claim because there was not sufficient evidence to support it. We disagree.
Whether a communication is capable of defamatory meaning is a question of law. Clawson v. St. Louis Post-Dispatch, 906 A.2d 308, 313 (D.C. 2006). As Clampitt correctly notes, this court has held that "actionable defamation is not necessarily restricted to verbal conduct." Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 878 n.5 (D.C. 1998) (holding that defendant law firm's "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" could not "fairly be characterized as non-defamatory as a matter of law") (citing, inter alia, PROSSER AND KEATON ON THE LAW OF TORTS, § 112, at 786 (5th ed. 1984), and Gregory G. Sarno, Annotation, Libel or Slander: Defamation by Gestures or Acts, 46 A.L.R. 4th 403 (1986)).*fn21 In other words, we have recognized that, at least in some contexts, defamatory statements may consist of or entail actions or conduct rather than mere words.
We also have little trouble concluding that the article that appeared in the Washington Post on October 20, 2003--asserting that under Clampitt's watch, WAMU had been "awash" with "large operating deficits," and describing a depletion of the station's emergency cash fund by millions of dollars--is capable of defamatory meaning. On this, we agree with Ladner, who acknowledged at his deposition that "anytime you get high profile articles about financial 29 difficulties," suspicion that those involved "had engaged in criminal activity or had done something [entailing] financial impropriety" "is a natural question." Cf. Moss v. Stockard, 580 A.2d 1011, 1023 (D.C. 1990) (applying the rule that a statement must be taken in the sense in which it would be understood by those to whom it was addressed, and concluding that statement that plaintiff had misappropriated funds could be understood to mean that plaintiff had engaged in some form of deliberate wrongdoing); Gadach v. Benton County Co-op. Ass'n, 53 N.W.2d 230, 233 (Minn. 1952) (holding that "the term'deficit' may under certain circumstances convey a defamatory meaning").
Nevertheless, if Clampitt's claim were only that the University terminated her in the immediate wake of the Washington Post or other press reports, we would be unwilling to extend our reasoning in Wallace to allow Clampitt's claim. Terminations of at-will employees can occur "for any reason, or for no reason at all," see Fingerhut v. Children's Nat'l Med. Ctr., 738 A.2d 799, 803 n.6 (D.C. 1999) (citation and internal quotation marks omitted), including reasons that have arisen before or after a negative press report and that are unrelated to such report. Thus, any message conveyed by a termination standing alone is ambiguous.*fn22 We are not prepared to hold that a cause of action for defamation arises merely upon the interpretation that third parties have placed upon a termination, or upon an employer's public silence in the wake of terminating an employee who has been the subject of negative press reports.*fn23 Such a holding would, we think, be contrary to our doctrine of at-will employment.
Here, however, the record discloses a sufficient basis to allow Clampitt's claim about a defamatory "public" termination. As recounted supra, within days after Clampitt was fired, one news article reported that 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 Clampitt's termination, the Washington Post quoted Ladner as saying that "his decision was based on several factors, including the continuing pattern of deficits...."*fn24 We are satisfied that these allegations raise a jury question about whether the University and Ladner defamed Clampitt by publicly appearing to adopt the allegations of financial mismanagement in the October 20, 2003 Washington Post article (and in other pre-termination press reports). This holding, we think, recognizes "society's interest in affording relief for reputational injurythat results from defamatory falsehood," Moss, 580 A.2d at 1033 n.37, without undermining employers' freedom to terminate at-will employees.
Although this case arises in a private rather than public employment context, it bears strong similarity to cases that have arisen in the public context, in which terminated employees have been permitted to go forward on claims that they were stigmatized (and thus deprived of a liberty interest) when their employers impliedly adopted statements made in allegedly defamatory derogatory press reports when terminating them in the wake of those reports. See, e.g., Warren v. City of Junction City, 176 F. Supp. 2d 1118, 1123 (D. Kan. 2001), motion for judgment as a matter of law notwithstanding the verdict denied, 207 F. Supp. 2d 1216, 1218 (D. Kan. 2002). Warren was a former Police Chief who was terminated after a report questioning a police department investigation was sent to City officials and to the press, and after the press published a story summarizing the report's allegations that Warren had, inter alia, mismanaged the department and obstructed justice. 176 F. Supp. 2d at 1123. After firing Warren, the City Manager sent a press release to local newspapers, and a newspaper article thereafter quoted the City Manager as saying, "It's action that we took... as a result of things that have occurred at the police department." Id. at 1122-23. The court summarized Warren's claim as follows:
Plaintiff does not rely on a published statement made directly by the city impugning his good name. Instead, he relies on an adoption theory. He asserts that a reasonable jury could find that the city adopted stigmatizing allegations contained in a newspaper article summarizing the... report. The defendant urges the court to reject the adoption theory because the allegations in the newspaper did not come from the city, and the city never explicitly adopted them. The court agrees with the plaintiff and holds that a genuine issue of material fact exists regarding whether the defendant adopted stigmatizing statements in the course of the plaintiff's termination.
Id. at 1131. The court went on to deny defendant's summary judgment motion as to plaintiff's deprivation-of-liberty-interest claim because, "particularly in light of the city manager's statement," id. at 1132, there was "a genuine issue of material fact whether the city, in the course of its termination proceedings, adopted allegations published in a local newspaper that stigmatized the plaintiff, and which the plaintiff alleges are false." Id. at 1121.
In holding that Clampitt's "public termination"--the University's public announcement and explanatory comments that followed Clampitt's firing in the wake of the October 20 Washington Post article--was capable of defamatory meaning, and that Clampitt's defamation claims against the University and Ladner may go forward, we of course reach no conclusion about whether the public termination actually was defamatory. Our holding reflects our conclusion that appellees' actions "cannot fairly be characterized as non-defamatory as a matter of law." Wallace, 715 A.2d at 878. A jury must determine whether the statements in the press, or what the statements implied, "injure[d] the plaintiff in [her] trade, profession or community standing, or lower[ed] [her] in the estimation of the community," Moss, 580 A.2d at 1023; whether appellees adopted any statements that were so injurious, see Warren v. City of Junction City, 176 F. Supp. 2d at 1132; and whether the statements or what they implied was true. See Moss, 580 A.2dat 1022(noting that "truth is an absolute defense in defamation law"). This opinion does not foreclose any defense to the claims of defamation that appellees may have, or any affirmative defense or claim of mitigation that appellees may raise.*fn25
Nor do we in this opinion decide the issue, which appellees raise, of whether Clampitt is a "limited-purpose public figure," Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974),*fn26 such that to prove defamation, she must "prove by clear and convincing evidence" that appellees acted "with actual malice, i.e., intentional or reckless disregard for [the] falsity" of what their actions conveyed. Moss, 580 A.2d at 1029 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)). We acknowledge that whether Clampitt is a limited-purpose public figure "subject to the New York Times standard is a question of law to be resolved by the court," id., a question which this court could address in the first instance. See Connelly v. Swick & Shapiro, 749 A.2d 1264, 1269 (D.C. 2000). But because this is a case in which the trial court dismissed the defamation claim without findings of record and thus where "there are so few findings of fact pertaining to [the factors that bear on Clampitt's status]," we think it better to "defer here to the trial court to address the matter in the first instance." Concord Enters, Inc. v. Binder, 710 A.2d 219, 223 n.6 (D.C. 1998); see also Connelly, 749 A.2d at 1269 ("bearing in mind the way this case has evolved, prudence suggests that the trial judge consider it first").
A few additional points are necessary to explain why we reinstate Clampitt's defamation claim against Ladner. The trial court dismissed the claim on the pleadings on the ground that "there is nothing to suggest a motive for self-interest that would take the matter outside of his actions, on behalf of the university." Appellees urge us to affirm the court's ruling because Clampitt "fails to allege any facts of personal agenda or malicious intent of the President against Ms. Clampitt" and because she "points to no defamatory statement about her by President Ladner nor malicious excess of his qualified privilege of comment about employees." "In reviewing an order dismissing [on the pleadings] a claim for defamation, we continue to adhere to the standard of whether, construing the complaint in the light most favorable to the plaintiff, it appears beyond doubt that [plaintiff] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Oparaugo v. Watts, 884 A.2d 63, 77 (D.C. 2005). We have not adopted a "heightened pleading rule for defamation cases." Id. at 76-77. In light of our standard of review, we are satisfied that the allegations of the Complaint--though lacking in the detail supplied by the full summary judgment record--were sufficient to state a claim for defamation against Ladner personally. For example, in paragraph 47 of her Complaint, Clampitt alleged that Ladner "publicly" terminated her and "defamed Plaintiff by creating the circumstances that would lead a reasonable person to conclude that Plaintiff was responsible for... financial mismanagement" as reported in the press, "which... Ladner knew or had reason to know was not true."
While, as appellees assert, our case law recognizes a qualified privilege of employers to comment about employees, see Thomas v. Howard, 168 A.2d 908, 909-10 (D.C. 1961), that privilege can be lost where there is "excessive publication or express malice." Id. at 910. "Malice, in the context of a qualified privilege, is the equivalent of bad faith. It is the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will." Moss, 580 A.2dat 1025. Clampitt's Complaint alleged that Ladner had specifically approved the financial and budgetary recommendations made by Plaintiff concerning station operations" and knew that the claims of financial mismanagement reported in the press were "without foundation," but "publicly" terminated her in a manner that would lead the public to conclude that Clampitt was responsible for financial mismanagement. We think that, taken in their entirety, the assertions in the Complaint sufficiently alleged that Ladner acted in bad faith. It was not necessary, as the court's ruling implied, that the Complaint point to a "motive for self-interest" that Ladner may have had, in order to withstand Ladner's Rule 12 (b)(6) motion. See Moss, 580 A.2d at 1028 (rejecting claim that plaintiff Stockard's showing of common law malice was insufficient as a matter of law where the evidence permitted the jury to find that university official Moss had charged Stockard with misappropriation despite his knowledge that the characterization was inaccurate, and concluding that it was enough that Moss had "made the charge of misappropriation with, at the least, reckless indifference to its effect on Stockard's reputation").
The trial court dismissed Clampitt's claim for payment for allegedly accrued but unused vacation time because Clampitt "did not know the basis" for the amount for which she sued and could not explain the discrepancy between the amount of accrued leave she sought in her Amended Complaint and the amount (two weeks' salary) she claimed she was due when she wrote to the University shortly after her termination.*fn27 The court noted the testimony by Karmiol that she believed Clampitt did not accrue leave since it was not reported on her pay stubs, and the testimony by Muha that Clampitt did not accrue vacation, but instead held a position in which the employee simply works out leave with her supervisor on an as-needed basis, and that Clampitt did not "have a bucket of leave to be paid."
Clampitt argues that the court usurped the jury's role by crediting the University's witnesses and disregarding the disputed issue of fact created by the plain language of the Manual. However, we agree with the trial court that Clampitt failed to set forth specific facts from which the jury could conclude that she was entitled to the amount she claimed. At her deposition, she could not recall how she arrived at the amount of vacation pay ($30,000) that she was suing to recover. She also stated at her deposition that the University intranet, which could be accessed to verify the amount of accrued benefits, showed as to her that accrued vacation was "not applicable."
The only affirmative evidence that Clampitt cited in support of her accrued-leave claim was the statement in section 2.5 of the Senior Staff Manual. See note 26 supra. However, as we have concluded above, Clampitt failed to set forth facts sufficient for a jury to conclude that the terms of the Manual were an enforceable contract. In addition, Clampitt's offer letter stated that she would be entitled to "benefits for full-time staff in accordance with the university's Faculty-Staff Benefits Manual," not in accordance with the Senior Staff Manual, and the record contains no indication of what benefits the Faculty-Staff Benefits Manual described. We agree with the trial court that Clampitt failed to make a showing as to her vacation-pay claim that was sufficient to avoid summary judgment.
For the foregoing reasons, we affirm those portions of the trial court's orders dismissing Clampitt's breach of contract, tortious interference with contract, breach of the duty of good faith and fair dealing, and vacation-pay claims. We reverse those portions of the court's orders dismissing Clampitt's defamation claims against the University and Ladner, and remand for further proceedings consistent with this opinion.