Atkins v. Indus. Telecommunications Ass'n, No. 93-CV-1101.

• Docket Nº: No. 93-CV-1101.
• Citation: 660 A.2d 885
• Case Date: June 05, 1995
• Court: Court of Appeals of Columbia District

660 A.2d 885

John M. ATKINS, Appellant,
v.
INDUSTRIAL TELECOMMUNICATIONS ASSOCIATION, INC., Appellee.

No. 93-CV-1101.

District of Columbia Court of Appeals.

Argued September 20, 1994.

Decided June 5, 1995.

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Douglas C. Herbert, with whom Lani Schweiker Shelton, was on the brief, for appellant.

Tina L. Snee, with whom John H. Johnson, was on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN and KING, Associate Judges.

Opinion concurring in part, and dissenting in part by Chief Judge WAGNER at p. 895.

KING, Associate Judge:

This appeal stems from the trial court's dismissal of a three-count complaint filed by John M. Atkins against Industrial Telecommunications Association, Inc. ("ITA"), his former employer, in which he claimed his discharge from employment was both in violation of public policy (Count I), and a breach of a contract of employment (Count II); he also claimed he was defamed (Count III). ITA moved to dismiss for failure to state a claim upon which relief could be granted, pursuant to Super.Ct.Civ.R. 12(b)(6) ("Rule 12(b)(6)"), as to each count, and in the alternative, as to Count III, for summary judgment pursuant to Super.Ct.Civ.R. 56 ("Rule 56"). ITA also moved for dismissal of all three counts on grounds of forum non conveniens.

The trial court dismissed Counts I and II pursuant to Rule 12(b)(6) and Count III, as discussed infra, note 15, pursuant to both Rule 12(b)(6) and Rule 56. As to Count I, the trial court ruled that Atkins failed to state a cause of action for discharge of an at-will employee in violation of public policy because he failed to plead facts within the narrow exception established by Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985) and Miller v. SEVAMP, Inc., 234 Va. 462, 362 S.E.2d 915 (1987). As to Count II, the trial court held that because Atkins was not discharged for a work deficiency, he was not entitled to a pre-termination warning, thus there was no breach of contract. Finally, the court dismissed the two defamation claims contained in Count III,¹ because, with respect to the staff memo, the trial court concluded that Atkins failed to sufficiently allege the falsity of assertions made, and, as to the termination letter, neither District of Columbia nor Virginia law recognized a cause of action for defamation based on compelled self-publication. We affirm with respect to Counts I and II and that portion of Count III relating to the termination letter delivered by ITA to Atkins. We reverse the dismissal of the defamation claim relating to the staff memo circulated by ITA's president to the employees of the company.

I.

A. Background

Appellee-defendant, Industrial Telecommunications, Inc. (ITA—formerly SIRSA) is a non-profit organization incorporated in the

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District of Columbia, with its principal place of business in Arlington, Virginia, where Atkins was employed. Atkins was also a Virginia resident. Spectrum Management Systems, Inc. ("Spectrum") was a wholly-owned subsidiary of ITA, also incorporated in the District of Columbia. ITA employed appellant for almost seventeen years, and at the time of his termination, he was First Vice-President of ITA and a member of the Board of Directors of Spectrum

B. Events Leading up to Atkins's Termination

At a September 1991 Spectrum Board meeting, Mr. Mark Crosby, ITA's president and Atkins's immediate supervisor,² became displeased with Atkins because Atkins did not vote for Crosby's choice for the Chairmanship of Spectrum's Board of Directors. In December of the same year, during a performance review, Crosby informed Atkins he would not receive a bonus. Crosby elaborated that the no-bonus decision was influenced by Atkins's failure to support Crosby's candidate; it was not performance-based, but was intended to deter future insubordination. Crosby also stated Atkins was "stupid" and "a disgrace" to have supported the other candidate and, by doing so, had done himself irreparable harm in his employment. Crosby terminated Atkins on May 19, 1992, providing him with a copy of a memorandum ("staff memo"), previously circulated to the entire staff. This was followed a few days later by transmission of a letter to Atkins ("termination letter"), signed by Crosby, which set forth the reasons for the termination. Atkins claims the staff memo was defamatory. He also claims that the grounds given for his discharge in the termination letter, which he has been compelled to disclose to prospective employers, are false and defamatory, have damaged his reputation, and have hampered his search for employment.

II.

A. Scope of Review

In reviewing the grant of a Rule 12(b)(6) motion, this court applies the same standard as the trial judge, viz: we accept the allegations of the complaint as true, and construe all facts and inferences in favor of the plaintiff. McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979). Rule 12(b)(6) tests only the "legal sufficiency of the complaint." Vincent v. Anderson, 621 A.2d 367, 372 (D.C. 1993) (citing American Ins. Co. v. Smith, 472 A.2d 872, 873-74 (D.C.1984)). Dismissal is warranted under this rule only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Owens v. Tiber Island Condominium Ass'n, 373 A.2d 890, 893 (D.C.1977) (quoting Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); accord, Vincent, 621 A.2d at 372; Aronoff v. Lenkin Co., 618 A.2d 669, 684 (D.C.1992). Any uncertainties or ambiguities involving the sufficiency of the complaint must be resolved in favor of the pleader, and generally, the complaint must not be dismissed because the court doubts that plaintiff will prevail. Amoco Oil, supra, 404 A.2d at 203.

Summary judgment is proper if, in construing all facts and inferences in the light most favorable to the non-moving party, Nader v. de Toledano, 408 A.2d 31, 41-42 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980), the record shows there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Super.Ct.Civ.R. 56(c). The burden of showing the absence of any factual issue is borne by the moving party. Id. On appeal we determine whether the trial court properly concluded the movant has met its burden of proving that there was no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Clay Properties, Inc. v. Washington Post Co., 604 A.2d 890, 893 (D.C.1992) (en banc).

B. Choice of Law

As a preliminary matter, a brief discussion of the choice of law to be applied

660 A.2d 888

is necessary to place the parties' contentions in context. ITA argues that, pursuant to Hercules & Co. v. Shama Restaurant Corp., 566 A.2d 31, 40 (D.C.1989), Virginia's law, as the jurisdiction with the most significant relationship to the events, should apply to each claim. The trial court, however, agreeing with Atkins, applied Virginia law to Counts I and II, and assumed, without deciding, that both Virginia and District of Columbia law applied to Count III. Choice of law issues are normally treated as questions of law subject to de novo review by this court, id., meaning, we make an independent determination of which state law to apply

Virginia has significant contacts to this case, see Estrada v. Potomac Elec. Power Co., 488 A.2d 1359, 1361 n. 2 (D.C.1985), and we conclude the trial court properly applied Virginia law to Counts I³ and II. We can discern no basis, however, for applying District of Columbia law to Count III, as the trial court assumed might be the case; therefore we will apply Virginia law in our analysis.⁴ That choice should not affect the result, however, because as we have said, "there are few discernible differences between Virginia and District of Columbia defamation law." Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204, 1208 (D.C.1991).⁵

III.

Count I—Discharge in violation of public policy

Atkins claims his discharge from ITA's employ violated the public policies of Virginia and the District of Columbia because as a corporate director, he had a fiduciary duty to exercise his vote in the best interest of the company, free from duress and intimidation. In the trial court, Atkins contended, relying on Bowman and Gulledge v. Dyncorp Inc., 24 Va.Cir. 538, 541 (1989), an opinion by a Virginia circuit court judge, that he need only prove his discharge was retaliatory, not that he was coerced or threatened before he cast his vote. The trial court rejected Atkins's reliance on Bowman because Atkins did not claim Crosby attempted to control his vote, before the vote was cast, as was the case with the Bowman employees. Bowman involved two employees, also stockholders in the employer corporation, who were terminated for failing to vote their stock in accordance with the directives of management which had been conveyed

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to the employees before they cast their vote.⁶ The Virginia Supreme Court held the terminations violated public policy in that Va.Code § 13.1-32 guarantees a stockholder the right to cast one vote for each share of stock held, without fear of intimidation. Bowman, supra, 331 S.E.2d at 801

The trial judge also rejected Atkins's reliance on Gulledge, in which a Virginia circuit judge extended Bowman to an employee, also a member of the Board of Directors, who contended his employment contract was terminated after he failed to vote, as a member of the Board, in favor of a corporate merger desired by management, even though there was no evidence that management instructed him how he should vote before the vote took place. The trial judge, declined to follow Gulledge because the judge in Gulledge ultimately held that the employee was in fact hired pursuant to a contract, and therefore, the public policy exception for at-will employees did not apply. Gulledge, supra, 24 Va.Cir. at...