Argued May 15, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Kevin E. Byrnes, Falls Church, VA, for appellant.
Earl N. Mayfield, III, for appellee Karen Thompson.
Before OBERLY and BECKWITH, Associate Judges, and REID, Senior Judge.
BECKWITH, Associate Judge:
Appellant William Armstrong, a former special agent with the Treasury Inspector General for Tax Administration (TIGTA), was on the verge of leaving TIGTA to take a job at the United States Department of Agriculture (USDA) when the USDA abruptly rescinded its offer of employment after one of Mr. Armstrong's TIGTA coworkers sent six then-anonymous letters to the USDA avowing that the agency was making a " grave error" in offering Mr. Armstrong a job because he was under internal investigation for serious integrity violations and other misconduct and would be a liability to the USDA. Mr. Armstrong brought five tort claims against the letter writer, Karen Thompson, and her husband, David Sutkus— both also special agents at TIGTA— and he now appeals from Superior Court Judge Anthony Epstein's grant of summary judgment in appellees' favor on each of those claims.
For the reasons stated below, we affirm that judgment with respect to Mr. Armstrong's claims of defamation, invasion of privacy (false light), invasion of privacy (publication of private facts), and intentional infliction of emotional distress. Because
we see in the record genuine issues of material fact on which a jury could have found the elements of intentional interference with contractual relations, however, we reverse the grant of summary judgment on that claim.
In October 2006, Karen Thompson made an anonymous hotline complaint to the Department of the Treasury's Office of the Inspector General accusing her TIGTA coworker, William Armstrong, of unlawfully accessing various records and databases. The complaint triggered an internal investigation led by Rodney Davis, who was both Mr. Armstrong's supervisor and a person whom Mr. Armstrong had previously investigated. Around October 31, 2006, Mr. Armstrong received a letter indicating that he was under investigation and was reassigned to the Technical Services and Firearms Division to perform " other duties as assigned." While there is some dispute about whether Mr. Armstrong was " relieved of all law enforcement powers" and whether his status during the investigation was accurately deemed " administrative leave,"  it is undisputed that the agency removed his badge, credentials, and government vehicle, suspended his supervisory authority, and took away his government computer.
After the United States Attorney's Office declined to criminally prosecute Mr. Armstrong in February 2007, TIGTA continued its internal investigation of Mr. Armstrong for allegedly gaining unauthorized access to agency databases and disclosing the information he obtained to other TIGTA personnel. Mr. Armstrong told the investigating agents that he had, in fact, used the databases for personal use, but did so in an effort to protect himself from Rodney Davis, who he believed was discriminating against him, and to " see how other similarly situated agents were being treated."
When the Treasury Department investigation wrapped up in April 2007, the investigating team concluded in a Report of Investigation (ROI) that Mr. Armstrong had gained unauthorized access to two databases in violation of criminal law and had accessed a report without official need to know. Mr. Armstrong filed an appeal to the Merit Systems Protection Board challenging the validity, motivation, reliability, and sufficiency of the findings and investigative methodology. The parties reached a settlement agreement on February 7, 2008, before discovery was concluded. Mr. Armstrong agreed that TIGTA would impose a thirty-day suspension, that he would resign within 90 days after the execution of the agreement, and that the official record would " state that the reason for the suspension was misuse of a government computer and unauthorized access to agency files for personal use." The settlement acknowledged that Mr. Armstrong was not making any admission of " liability, fault, or error."
Before the parties had reached a settlement and while the administrative investigation was still ongoing, Mr. Armstrong began looking for another job. The woman at USDA who interviewed him for a criminal investigator position in March 2007 stated in her deposition that she had a favorable impression of Mr. Armstrong and that he had disclosed during the interview that he was under internal investigation for allegedly making unauthorized access to a database and disclosing the information he had obtained. In August
2007 the USDA offered Mr. Armstrong a job, scheduled to begin that September.
After Mr. Armstrong had accepted the USDA job, that agency received six anonymous letters— two distinct versions, each addressed to three different recipients— disclosing information about TIGTA's investigation of Mr. Armstrong. The letters ultimately led the USDA to rescind Mr. Armstrong's employment offer. One letter stated, for example, that Mr. Armstrong was under internal investigation by TIGTA " for suspected violations of both a criminal and administrative nature," that he had chosen to leave TIGTA " with the threat of termination hanging over his head," and that the USDA had " opened itself up to potential liability" in hiring Mr. Armstrong. The other said the USDA was making a " grave error" in hiring Mr. Armstrong, stated that he was under investigation for " gross misconduct and integrity violations," and concluded: " I guess it is true what they say about the government. Instead of dealing with the problem, you pass the problem onto someone else. Well I guess [Mr. Armstrong] is your problem now."
Mr. Armstrong at first believed that the letters were sent by Rodney Davis in retaliation for Mr. Armstrong's previous investigation of him and for Mr. Armstrong's complaints to TIGTA about Mr. Davis's work performance and unfair treatment of employees. Contending that the letters disclosed information from a government system of records, he sued the Department of the Treasury, his former supervisor Mr. Davis, and other unnamed employees of TIGTA in federal district court under the Privacy Act, 5 U.S.C. § 552a (b), and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Armstrong v. Geithner, 610 F.Supp.2d 66 (D.D.C.2009). On the eve of that trial, Ms. Thompson admitted that she had written and mailed the letters to the USDA. Id. at 69. Mr. Sutkus admitted that he was aware of the letters and their contents, although he denied having helped Ms. Thompson draft the letters.
The federal court ruled in favor of the defendants, finding that the information in the disclosed letters did not come from the Treasury Department's system of records, as required for Mr. Armstrong to prevail in the Privacy Act claim. Id. at 71. In the judge's view, " the record of this case establishes nothing more than that Thompson collated what she knew from her own complaint, from her own observations and speculation and those of others, from the rumor-mill that apparently goes virtually unchecked at TIGTA, and from other non-covered sources." Id. The judge deemed the remaining claims to be barred " by 28 U.S.C. § 2680(h) or unsupported by the evidence." Id. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that ruling. Armstrong v. Geithner, 608 F.3d 854 (D.C.Cir.2010).
On June 5, 2009, Mr. Armstrong filed suit in D.C. Superior Court, asserting various tort claims against Ms. Thompson and Mr. Sutkus. Both defendants sought certification from the U.S. Attorney's Office that they were acting within the scope of their employment at all times relevant to Mr. Armstrong's claims, but the U.S. Attorney's Office refused to provide it. When Ms. Thompson and Mr. Sutkus removed the case to U.S. District Court for review of that refusal, the court concluded that neither employee was acting within the scope of his or her federal employment when writing and mailing the letters to the USDA. Armstrong v. Thompson, 759 F.Supp.2d 89, 97 (D.D.C.2011). The case was then remanded to Superior Court, where in June 2012 Judge Epstein granted Ms. Thompson's and Mr. Sutkus's motions for summary judgment on all five claims:
defamation, intentional infliction of emotional distress, false light, publication of private facts, and intentional interference with prospective contractual relations.
We review a grant or denial of a motion for summary judgment de novo. Clampitt v. American Univ., 957 A.2d 23, 28 (D.C.2008) (citing Kotsch v. District of Columbia, 924 A.2d 1040, 1044 (D.C.2007)). " 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." Id. (citing Super. Ct. Civ. R. 56(c)). " On review of summary judgment, ‘ [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.’ " Rosen v. American Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1255 (D.C.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (alteration in original). Summary judgment is improper if ...