Appeal from the Superior Court of the District of Columbia (CAB5606-08) (Hon. Natalia Combs Greene, Trial Judge)
The opinion of the court was delivered by: Wagner, Senior Judge
Before WASHINGTON, Chief Judge, and WAGNER and REID, Senior Judges.*fn1
Appellant, Katherine T. Wallace, Ph.D., appeals from the grant of summary judgment in favor of her former employer, appellees Eckert, Seamans, Cherin & Mellott, LLC ("Eckert Seamans," "employer" or "firm"), on her complaint for wrongful discharge. In her complaint, appellant alleged that Eckert Seamans wrongfully discharged her: (1) because of her refusal to violate the law and Rule 1.1 of the District of Columbia Rules of Professional Conduct; (2) in breach of express and implied promises of employment; and (3) for unlawful discriminatory reasons based on race, age, disability and gender. The trial court concluded that no genuine issues of material facts were in dispute and that Eckert Seamans was entitled to judgment as a matter of law. In addition to seeking reversal of summary judgment, Dr. Wallace challenges on appeal the trial court's order declining to compel production of certain documents withheld by Eckert Seamans on the grounds of attorney-client and work product privileges. We affirm the trial court's decision.
The facts underlying this case may be summarized briefly as follows. On July 30, 2007, Eckert Seamans hired Dr. Wallace, an African-American, as a project attorney to work in its Washington, D.C. office reviewing and translating documents written in German and other foreign languages related to litigation involving one of its clients.*fn1 Her responsibilities included coding these documents using a computer system in order to categorize them for purposes of identification and document production in certain products liability cases. About one year after she was hired, Eckert Seamans terminated Dr. Wallace's employment, asserting that her productivity level was unacceptably low when compared to that of other attorneys performing coding work on the project. Eckert Seamans offered Dr. Wallace an opportunity to retain her position provided she made a commitment to improve her productivity level consistent with that of her peers. She declined the offer, contending that the employer's demand would require her to violate ethical standards of the profession and the law. Dr. Wallace filed a complaint in Superior Court alleging claims for: (1) wrongful termination for refusal to violate D.C. Code §§ 22-3211 and -3221; (2) wrongful termination for refusal to violate Rule 1.1 of the District of Columbia Rules of Professional Conduct; (3) promissory estoppel; and (4) racial, disability, age, and sex discrimination in violation of D.C. Code § 2-1402.11 (a). After discovery, Eckert Seamans moved for, and was granted summary judgment, and this appeal followed.
Additional facts are set forth with the analysis of the arguments to which they relate.
II. Wrongful Discharge Claims
Dr. Wallace argues that the trial court erred in granting Eckert Seamans summary judgment on her claim that she was wrongfully discharged in violation of public policy for her refusal to violate the law, D.C. Code §§ 22-3222 (theft) and -3221 (fraud), and Rule 1.1 of the District of Columbia Rules of Professional Conduct. She contends that she presented evidence showing a jury triable issue concerning whether Eckert Seamans fired her solely for the improper reasons she asserts. Eckert Seamans argues that Dr. Wallace failed to provide evidence supportive of her claim that her employment required her to violate the law or the Rules of Professional Conduct. It also challenges the legal viability of her public policy argument based on the Rules of Professional Conduct. We set forth briefly the legal principles related to Wallace's wrongful discharge claims before addressing them.
A. Applicable Legal Principles
"It has long been settled in the District of Columbia that an employer may discharge an at-will employee at any time for any reason, or for no reason at all." Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (citations omitted). In Adams, this court recognized "a very narrow exception to the at-will doctrine under which 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. In Adams, the former employee, a truck driver, alleged that his former employer fired him solely for his refusal to drive a truck that did not have an inspection sticker as required by a municipal regulation. Id. at 34. Subsequently, a majority of the en banc held that Adams does not preclude the recognition of other public policy exceptions to the at-will employment doctrine when warranted by the circumstances. Carl v. Children's Hosp., 702 A.2d 159, 160 (D.C. 1997) (en banc). In Carl, a majority explained that "the recognition of any public policy exceptions to the at-will doctrine must be solidly based on a statute or regulation that reflects the particular public policy to be applied, or (if appropriate) on a constitutional provision concretely applicable to the defendant's conduct." Id. at 163. The public policy exception upheld in Carl was based on a statute, D.C. Code § 1-224 (1992).*fn2 See id., 702 A.2d at 163-64 & n.6 (Terry, J., concurring).
This court has not decided whether the Rules of Professional Conduct, upon which Dr. Wallace relies, are the equivalent of a statute or regulation for the purpose of application of a public policy exception to the at-will employment doctrine. See Wallace v. Skadden, Arps, Slate Meagher & Flom LLP (Skadden Arps), 715 A.2d 873, 883-84 (D.C. 1998). Although the theory was advanced in Skadden Arps, this court concluded that the appellant's claim failed because her complaint revealed that "she was not terminated solely, or even substantially, for engaging in conduct protected by such an exception." Id. at 886. The court also observed that the particular Rules of Professional Conduct upon which appellant relied in that case had no applicability to her claim.*fn3 Id. at 883-84.
Dr. Wallace's position in the trial court and on appeal is that in order to meet the employer's new productivity goals for the review of German language documents, she would have to perform the work incompletely with the employer's apparent expectation that she would bill the client for full performance. Therefore, she contends that the employer's productivity requirements were tantamount to instructing her to violate two criminal statutes, D.C. Code §§ 22-3222 (theft) and -3221 (fraud), and Rule 1.1 of the District of Columbia Rules of Professional Conduct.*fn4 Based on these theories, Dr. Wallace claimed that Eckert Seamans violated public policy in firing her for her refusal make a commitment to comply with its productivity standards.
In granting summary judgment for Eckert Seamans, the trial court found that Wallace had failed to produce any evidence supporting her claim that her employer's sole reason for firing her was her refusal to violate the law. Assuming without deciding that a public policy exception could be based on the Rules of Professional Conduct, the trial court granted summary judgment for Eckert Seamans on this theory because Dr. Wallace failed to produce evidence showing that her employer's instructions for document review required her to violate Rule 1.1. The trial court concluded that Wallace relied upon conclusory allegations and speculation for her argument, which are insufficient to defeat a properly supported motion for summary judgment.
Summary judgment will be granted if a party demonstrates that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Super. Ct. Civ. R. 56 (c); see Murphy v. Schwankhaus, 924 A.2d 988, 991 (D.C. 2007) (setting forth summary judgment standard under Super. Ct. Civ. R. 56 (c)). Once the moving party makes the requisite initial showing, "the burden shifts to the non-moving party to come forward with specific evidence showing, to the contrary, that genuine issues of material fact do exist." Id. (citing Beard v. Goodyear Tire & ...